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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


liNiVcRSITY  OF  CALIFORNIA, 

LIBRARY. 
sLOS  ANGELES,  CAUF, 


A   SHORT   CONSTITUTIONAL   HISTORY 
OF  THE  UNITED    STATES 


"  The  people,  then,  erected  this  government.  They  gave  it  a  consti- 
tution, and  in  that  constitution  they  have  enumerated  the  powers  which 
they  bestow  on  it.  They  have  made  it  a  limited  government.  They 
have  defined  its  authority.  They  have  restrained  it  to  the  exercise  of 
such  powers  as  are  granted,  and  all  others,  they  declare,  are  reserved 
to  the  states,  or  the  people.  But  they  have  not  stopped  here.  If  they 
had  they  would  have  accomplished  but  half  their  work.  No  definition 
can  be  so  clear  as  to  avoid  the  possibility  of  doubt ;  no  limitation  so 
precise  as  to  exclude  all  uncertainty.  Who,  then,  shall  construe  this 
grant  of  the  people  .'  Who  shall  interpret  their  will,  where  it  may 
be  supposed  they  have  left  it  doubtful  ?  With  whom  do  they  repose 
this  ultimate  right  of  deciding  the  powers  of  the  government  ?  They 
have  settled  all  this  in  the  fullest  manner.  They  have  left  it  with  the 
government  itself,  in  its  appropriate  branches.  The  very  chief  end,  the 
main  design,  for  which  the  whole  constitution  was  framed  and  adopted, 
was  to  establish  a  government  that  should  not  be  obliged  to  act  through 
state  agency,  or  depend  on  state  opinion  or  state  discretion." 

Webster,  Reply  to  Hayne,  January  26,  1830. 


UNIVERSITY    EDITION 

A    SHORT 

CONSTITUTIONAL    HISTORY 

OF  THE 

UNITED  STATES 

BY 

FRANCIS   NEWTON   THORPE,  Ph.D.,  LL.D. 

Author  of 

"  A  (State)  Constitutional  History  of  the  American  People,  1776-1850," 

"  The  Constitutional  History  of  the  United  States,  I7bs-i8g3" 

"  The  Government  of  the  People  of  the  United  States," 

etc.,  etc.,  etc. 


"  Those  commonwealths  have  been  ever  the  most  durable  and 
perpetual  which  have  often  reformed  and  recomposed  themselves 
according  to  their  first  institution  and  ordinance." 

John  Pym. 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 

192 1 


^>  0  o  n  p 


Copyright,  1904, 
By  Little,  Brown,  and  Company. 


All  rights  reserved 


:^ 


(A 


to 


PREFACE 


The  present  volume  narrates  the  constitutional  his- 
tory both  of  the  Union  and  of  the  states,  showing  the 
common    basis    of  American   local   and    general    gov- 

*»   ernment.     In    a   book    of  small   compass,    adapted   to 
V    those  who   desire  the   essentials  of  our  civil  develop-^ 

VJ  ^ment,  it  has  seemed  sufficient  if  there  were  related, 
(i)  the  origin  of  our  civil  system;  (2)  the  principles 
on  which  it  is  founded;  (3)  the  adaptation  of  the  plan 
of  government   to    public    needs,  by   amendment   and 

**'.  construction ;  and,  (4)  the  interpretation  of  the  prin- 
ciples of  the  government  by  the  supreme  tribunal, — 
the  courts. 

Constitutional  histories  of  America  usually  throw  little 
light  on  the  civil  development  of  the  states.  Writers 
have  centered  their  attention  upon  the  Federal  Govern- 
ment, the  trend  of  thought  running  easily  in  this  direc- 
tion since  1865.  Yet  it  is  in  the  state  constitutions  that 
one  may  read  the  record  of  constant  attempts  to  adapt 
the  written  form  of  government  in  America  to  the  im- 
mediate needs  of  the  people,  and  this  effort  at  adapta- 
tion begins  with  the  beginning  of  the  commonwealths 
and  is  a  characteristic  of  American  civil  life. 

For  this  reason  the  development  of  the  state  constitu- 
tions has  received  its  proportional  share  of  attention  in 
this  volume.     The  chapters  on  "The  Commonwealths" 


vi  PREFACE 

record  the  formulation  of  American  principles  of  govern- 
ment for  local  purposes,  —  which  means,  in  plain  speech, 
that  they  record  the  application,  or  attempted  application, 
of  constitutional  government  to  the  individual  needs  of 
large  and  important  groups  of  the  American  people. 

In  these  chapters  on  "  The  Commonwealths,"  as  well 
as  in  the  remaining  chapters  of  the  volume,  the  rela- 
tivity of  state  and  national  development  is  constantly 
kept  before  the  mind.  In  America  there  is  a  constitu- 
tional system  which  is  formulated,  nationally,  in  the  Con- 
stitution of  the  United  States,  and  locally,  in  the  organic 
laws  of  the  states.  It  is  one  civil  organism  expressing 
itself  in  dual  form.  The  principle  at  the  root  of  this 
idea  is  fundamental  to  the  American  system,  and  its 
clear  apprehension  is  the  first  essential  to  the  rational 
interpretation  of  civil  life  in  America, 

The  volume  rests  at  every  point  on  the  original 
sources  and  primary  authorities.  Every  portion  of  the 
Union  has  thus  contributed  to  the  narrative.  The 
scope  and  character  of  the  material  thus  consulted  are 
evident  from  the  foot-notes,  which  might  have  been 
multiplied  many  times,  had  the  size  of  the  book  per- 
mitted. The  Constitution,  with  citation  of  interpretative 
cases,  is  taken  from  the  Manual  of  the  Senate  of  the 
United  States.  Errors,  probably  of  transcription,  have 
been  corrected,  and  omissions,  chiefly  of  data  on  the 
ratification  of  the  Amendments,  have  been  supplied. 

In  addition  to  a  general  index  to  the  volume,  there  is 
a  special  index  to  the  Constitution. 


CONTENTS 

CHAPTER  ^^^^ 

I.    Union  .      .  ,    j    •  •  x    ^• 

Relative  order  of  civil  organization  and  administration  .  i 
Essential  character  of  the  American  Revolution;    a  civil 

adjustment * 

Government:  "  the  public  business"      .....       2 
Priority  of  American  written  constitutions         ...       2 
Dynastic  v.  popular  basis  of  government     ....       2 
Dual  form  of  government  in  America: 
(i)  National;    (2)  State;    or, 

(i)  general;    (2)  local j        '       '^ 

The  value  of  the  American  constitutions  as  records  .  3 
The  State  Constitutions  as  exponents  of  civil  principles  .  3 
Constitutions  and  laws    indicate  tendencies    in  govern- 


ment 


4 


The  actual  state  changes        .....••  4 

Constitutions  and  laws  enacted  to  secure  civil  permanency  4 

The  Thirteen  Colonies  (1776)  severally  independent         .  4 

Attempts  at  colonial  union  (1643) 4 

Diverse  character  of  the  plans: 

(i)  English;    (2)  American 5 

Question  of  the  taxing  power 5 

The  Albany  Plan  (1754),  its  basis        .       .       .       •       •  S 

Opposition  of  American  to  the  military  type  of  government  0 

The  Stamp  Act  (1765)     •       •       •    ,/  ,    '^     •.      •     .'  a 

The  First  American  Congress,  New  York,  October,  176S  0 

Its  Declaration  of  Rights ° 

Colonies  represented  (note)      .       .       '     c'  i.    't>     ' 
Revolutionary  character  of  the  doctrine  of  the  Uec- 

laration  of  1765       .        .        '.','•'       '  1 

The  taxing  power  as  an  exercise  of  right  the  issue    .       •  7 
Repeal  of  the  Stamp  Act  with  reservation  of  nght  to  tax 

America •    j'        '  7 

The  issue  of  American  independence  raised        .       ■•  7 

The  second  American  Congress,  Philadelphia,  September,  ^ 

1774  •       ■       ■  „ 8 

Colonies  represented „ 

Delegates,  number,  how  chosen     .        .        •        •        • 

The  first  and  second  Congresses  compared  .       .       •  | 
Question  of  instructions  to  delegates      .       •       •       • 
vii 


viii  -CONTENTS 

CHAPTER  PAGE 

Galloway's  plan  of  union 8 

Doctrine  of  "  natural  rights  " 8 

Both  economic  and  political  rights  recognized  _  .  .  8 
American  rights  declared  "  natural  and  constitutional  "  9 
Report  on  trade  and  manufactures  ....       9 

"The  Association  of  1774  " 9 

Fundamental  importance 9 

A  decisive  economic  event 9 

Lincoln's  estimate  of  it  9 

John  Adams'  estimate  of  it 9 

This  Congress  a  "  reform  convention  "   .        .        .        .       9 

Reforms,  not  independence  asked 9 

The  third  American  Congress,    May    10,    1775,    Philadel- 
phia   10 

Lord  North's  policy 10 

The  discretion  of  Parliament 10 

The  issue:  monarchy  t'.  democracy  ....  10 
The    several    Colonies    organize    State    governments 

(see  note) 10 

Departments   of  War,   Navy,   State,   and   the   Post- 

Office 10 

The  Congress  represents  united  America        ...      10 

Limited  power  of  this  Congress 10 

Public  opinion  the  sanction  to  its  acts    .        .        .        .      11 
Significance  of  issues  of  credit  money  (bills  of  credit)     11 
Reassembles   after   six  weeks'   adjournment,  with   as- 
surance of  public  approval 1 1 

The  continental  (national)  situation  .  .  .  .11 
Thomas  Paine's  pamphlet,  "  Common  Sense  "  .  .11 
Virginia  instructs  for  American  independence       .        .11 

Richard  Henry  Lee's  motion n 

The  Committee  on  Independence,  its  report  .  .12 
The  Committee  on  Articles  of  Confederation  and  its 

report 12 

Real  character  of  Dickinson's  plan         .       .       .        .12 

Its  progress  through  Congress 13 

Its  progress  through  the  States  (Legislatures)  .  13,  14 
Question  of  slavery,  basis  of  representation,  western 

lands 13,  14 

The  Articles  become   the    first  Constitution    of    the 
United  States  (March  i,  1781) 14 


Hamilton's  criticism  of  the  Articles 
The  Articles  tested  by  experience  . 
The  question  of  sovereignty 


Amendment  of  the  Articles  (a  more  perfect  imion) 

demanded 

Attitude  of  Congress  . 
Attitude  of  the  States 
Appeals  of  individuals  for  reform 
Condition  of  trade  and  commerce 


14,  IS 

15,  16 
.     16 


16 
16 
16 
16 
16 


CONTENTS  ix 

CHAPTER  PAGE 

Maryland  and  Virginia  and  control  of  commerce 

on  the  Potomac i6 

i6 
i6 
17 
17 
17 
17 


The  Annapolis  Convention  (1786)   . 

Its  appeal,  and  results 
A  Federal  Convention  determined  on 
Congress  assents         .... 
The  significance  of  "  Shays's  rebellion  " 
Constitutional  reforms  a  "  grinding  necessity  " 
II.    Formulation  of  the  Supreme  Law 

Delegates  to  the  Federal  Convention  chosen  (1787)   .     18 

Character  of  the  Convention 18 

The  "  Virginia  plan  "  submitted 18 

Outline  of  this  plan 18,  19 

A  "  national  government  "  proposed  ...  19 
The  "  national  "  party;  the  "  State  "  party  .  .  19 
Legislative,  Executive,  Judicial  powers  ...  19 
Details  of  the  Virginia  plan 
General  Pinckney's  draft  (note) 
Debate  of  the  Virginia  plan 
Decision  as  to  election  of  the  Executive,  June  4 
Differences  in  the  Convention: 

National  interests.  State   interests.  Commer- 
cial  interests,  agricultural  interests,  small 

States,  large  States 21 

Slavery 22 

Compromises: 

(i)  on  representation,     (2)    on    slaverj-, 
(3)  on  taxation  (trade,  commerce)    .        .22 
The  demand  of  the  small  States  (in  popula- 
tion) made  by  New  Jersey     ...       22,  23 
Proportional     representation      v.     equal 

representation 22 

The    large    States    (in    population)    demand 
proportional  representation  and  carry  the 

question 22,  23 

Attitude  of  Paterson,  Wilson,  Madison        22,  23 
The  "  New  Jersey  plan  "  submitted         .       23,  24 

Provisions  of  this  plan 24 

Attitude  of  Hamilton 24 

Hamilton's  plan  (sketch)    ....     24 
The   Virginia    and   New  Jersey  plans  com- 
pared and  discussed 25 

The  Connecticut  compromise  (Sherman) .       25,  26 
Details  of  Sherman's  plan  ....     26 
The    vote    a    tie:     A    Grand    Committee   of 

Eleven  elected  to  consider  the  plans         .     26 
Dr.  Franklin  secures  harmony  .        .        .       26,  27 
The  compromise  on  representation  adopted 
(equal     representation     and     proportional 
representation) 27 


CONTENTS 


CHAPTER 


PAGE 


The  question  of  apportionment  of  representa- 
tion involves  slavery,  and  taxation            .      27 
The  North  Carolina  compromise  (Williamson)     27 
Question  of  a  census    .        .        .        .        ■        -27 
The  Pennsylvania  compromise  (Morris)        .     28 
The  two  compromises  united     ...       28,  29 
The  amended  Virginia  plan  given  over  to  a 
Grand  Committee  (July  26)  to  report  a  Con- 
stitution      29 

Report  of  this  Committee  (August  6)        .       .     29 
The  Executive,  the  Legislative,  the  Ju- 
diciary         29 

Question  of  an  export  tax;  of  the  slave  trade; 

of  a  tariff 29,  30 

Attitude  of  the  South,  of  the  North  _  .        -3° 
Morris    succeeds    in    referring    all    disputed 

questions  to  a  Special   Committee    .        .     30 
The  slavery  compromise  agreed  to    .        .        .     30 
The  amended  draft  given  over  to  a  Commit- 
tee of  Eleven  which  reported  September  8   .     30 
The   Committee  on   Arrangement  and  Style 

reports  a  Constitution,  September  12      .       .     30 
Franklin's  conciliatory  speech    .       .       .       -31 

The  Constitution  signed 31 

The  Constitution  as  reported: 

Composite,  and  a  compromise        .        .31 
Arranged  by  Gouverneur  Morris       .        .32 
Its    origins    (chiefly    American)       .        .32 
Preamble,      threefold      division    of 
{wwers,    senate,    house,    journal, 
powers  of  two  houses,  habeas  cor- 
pus, ex  post  facto  laws,  veto  power, 
president,    vice-president,    judici- 
ary, treason,  public  records,  new 
states,  public  debt   .        .      32,   33.   34 
A  plan  of  government  not  a  code     .       .     34 
III.    First  Principles 

Washington's  estimate  of  the  Federalist         •       •       •     35 

Its  authors 3S,  36 

Anti-Federalist  pamphlets  (note) 35 

Purpose  of  the  authors  of  the  Federalist         ...     36 

Plan  of  the  essays,  authorship 36 

Union  or  dismemberment 37 

Purpose  of  Jay's  papers 37 

Purpose  of  Hamilton's  essays 37)  38 

Civil  dissensions  cited  by  Hamilton,  1786-7      .  38 

Hostile,  independent,  sovereign  States  v.  Union    .        .     38 
Objection  as  to  a  standing  army  answered                      .      ^^ 
Montesquieu's   objection    to   a   confederated   republic 
answered 39 


CONTENTS  xi 

CHAPTER  PAGE 

Emphasis  of  "  the  form  of  the  state  "...      39,  40 
Division  of  functions,  separation  into  three  parts       .     40 
The  proposed   "  civil  form  "   of   the  government  ex- 
tolled   41 

Saving  the  people  from  themselves  (Webster)  .  41,  42 
The  makers  of  the  Constitution  had  not  great  faith  in 

the  wisdom  of  the  people 42 

Lincoln,  Wilson,  Hamilton,  Madison  cited  ...  42 
A  national  government  and  industrial  prosperity  .  42 
Experience  of  the  States  imder  the  Confederation  as 

sources  of  revenue  (ta.xing  power)         ....     43 
National  taxation  for  national  ends  ....     43 

Distinction  between  a  Confederation  and  a  National 

Government 43 

Tendency  of  a  confederation  towards  military  despot- 
ism       43 

Coercion  of  laws  v.  coercion  of  arms       .        .        .      43,  44 
Objection  that  the  Union  would  absorb  the  States  an- 
swered         44 

The  people  the  source  of  power  (Hamilton)  ...  44 
Idea  of  a  standing  army,  1787  and  at  present  .  44,  45 
On  restriction  of  powers  of  the  Legislature  ...  45 
The  National  Government  will  attract  the  ablest  men  46 
Objection  as  to  abuse  of  the  taxing  power  by  Congress 

answered  (Hamilton) 46 

Maxim:    Relation  of  necessities  of  a  Nation  to  its 

taxing  power  (resources) 47 

The  means,  in  government,  must  be  adequate  to  the 

ends  proposed 47 

Objection  as  to  federal  usurpation  of  powers  answered  48 
Principle  as  to  prevention  of  excessive  taxation    .        .     48 

A  tariff  for  revenue 48 

Energy  in  government;  "  checks  and  balances  "  -49 
Madison  on   the   "  mechanical  arrangement  "  of  the 

proposed  government 49 

Is  the  government  national  or  federal?  (Madison)      49,  50 
(1)  Foundation;    (2)   Powers;    (3)   Sources;     (4) 
Operation;  (5)  Extent  of  powers;  (6)  Procedure; 
(7)   Mode  of  amendment        ....      49,  50 
IV.     First  Principles  {Continued) 

The  question  of  political  expediency        .       .       .       •     S^ 

Coercion  of  a  State 5^ 

Preventives  of  secession 51 

Maxim  of  ratio  of  power  to  its  duration  _   .        .        .52 
Lincoln's  interpretation  of   the  principle  .     52 

Objections  to  basis  of  representation  and  size  of  the 

two  Houses  answered S^ 

Principle  on  which  the  size  of  the  House  of  Represent- 
atives is  determined 52,  S3 

Objection  that  the  House  would  make  discriminations    53 


xii  CONTENTS 

CHAPTER  PAGE 

Hamilton's  estimate  of  the  taxing  power  in  the  House  53 
1 8th  century  idea  of  location  of  the  taxing  power  .  53 
Exclusive  taxing  power  and  control  of  elections      .     53,  54 

(See  note,  p.  53.) 
Principle:   the  National  Government  and  its  preserva- 
tion      54 

Theory  of  "  residuary  sovereignty "       .        .        .        -55 

Function  of  the  Senate 55)5^ 

The  term  of  the  Legislature 56 

Stability  sought  through  a  Senate  ....  56 
The  objects  of  government  immediate  or  remote  .  57 
Question  of  a  fixed  public  policy  .  .  _  .  .  -57 
Jay's  defense  of  the  Senate  as  a  treaty-making  power  57,  58 
Objections  to  President  and  Senate  as  treaty-making 

power  answered  (Jay) 5^ 

Hamilton's  defense  of  the  Senate  as  a  Court  of  Im- 
peachment          59 

Discussion  of  mode  of  electing  the  President         .       S9i  60 
Hamilton,  Lee,  Wilson  cited       .        .        .        .       59,  60 
Objections  to  the  powers  of  Congress       .                .60,  61 
Hamilton  relies  on  "  the  administration  of  the  gov- 
ernment," as  the  supreme  test 61 

No  discussion  of  political  parties 61 

The  principle  of  the  Judiciary  (Hamilton)       .    _    .        .62 
Three    classic    works    on    American    Institutions,  — 
"  The  Federalist,"  "  Democracy  in  America,"  and 
"  The  American  Commonwealth  "  (note)     ...     62 
Further  discussion  of  the  Judiciary  .        .        .       63,  64,  65 
(Organization,     powers,     jurisdiction,     encroach- 
ment on  legislative  authority,   inferior  courts, 
suability  of  a  State,  jury  trials)  63-66 

Objection  that  the  Constitution  had  no  Bill  of  Rights 
(Hamilton,  Wilson,  attitude  of  the  States)         .      66,  67 

Bills  of  Rights  in  the  States 67 

Main  doctrine  of  the  Federalist:    "  The  utility  of  the 

Union;  its  conformity  to  republican  principles  "  .    67,  68 
Analogy   of   the    Federal    Constitution    to    the   State 

Constitutions 68 

V.    The  Commonwealths 

Transition  from  Colony  to  State,  1 776-1 780   ...     69 

Vermont,  Kentucky,  Tennessee 69 

The  framers  of  these  early  constitutions  .        .      69,  70 

Political   theory  of  the  state:     i8th   century,  —  com- 
pact, individualism,  natural  rights,  Bills  of  Rights    .      70 
Popular  estimate  of  Bills  of  Rights  .        .        .        •       7°,  7i 
Magna   Charta,   the   Petition   of   Right,   the   English 

Bill  of  Rights,  the  American  Constitutions         .        .     71 
The  State  constitutions  limit  power         ....     71 
Made  by  conventions  and  (the  early  ones)  promul- 
gated   71 


CONTENTS  xiii 

CHAPTER  PAGE 


Soon  amended,  reasons  for 


71,72 
72 
72 
72 
72 

'2,  73 
73 
73 

73,  74 
74 


74 

74 

4,  75 

75 

75 

75 
76 


Temporary  provisions 

These  constitutions  silent  as  to  sovereignty  . 
Popular  belief  in  State  sovereignty,  i8th  century 
Popular  concept  of  the  Federal  Government 
Change  to  concept  of  National  sovereignty  . 

Case  of  Mississippi,  1890 

Theory  of  "  separation  of  powers  "... 
Theory  of  supremacy  of  the  Legislature 

The  British  prototype 

(tripartite  division,  taxing  power,  power  of  im 

peachment) 

White  persons  the  basis  of  representation 

Free  men  of  color  and  women  as  voters . 

Qualifications  for  office      .... 

Protest  against  religious  and  property  qualifications 

lead  to  their  abolition 
"  A  government  of  laws  rather  than  of  men  "  (Massa 

chusetts  constitution,  1780) 
Distrust  of  the  Executive 

Property  qualification,   social  position,   religious 
qualification,  principal  function  of  governors  76,  77 
Contrast  between  conception  of  the  Executive  in  the 

i8th  century  and  at  present 77 

Organization  of  the  Judiciary 77,  78 

Common  law  forms  and  innovations  in  legal  practice  78 
The  Maryland  constitution  (1776)  .  .  .  .  78 
Change  from  appointive  to  elective  system  (judiciary)  78,  79 
Distinguished  American  lawyers  of  the  period  .  .  79 
The  Massachusetts  type,  the  Virginia  type  of  con- 
stitution   79 

The  New  York  type  (cosmopolitan)       ....       79 

The  New  Jersey  constitution 79 

The  first  constitutions  short  and  simple  docimients     .       80 
Characteristics  of  the  first  constitutions        ...       80 

Individualism  a  ruling  idea 80,  81 

Hamilton's  maxim  (test)  of  a  strong  government        .       81 
VI.    Ratification  and  .Amendment 

General  conditions,  1787 82 

Attitude  of  the  State  party  to  ratification     .        .        82,  83 
Treatment  of  the  Constitution  by  Congress  .        82,  83 

The  Constitution  in  Pennsylvania  ....        83,  84 
In  Delaware,  New  Jersey,  Georgia,  Connecticut .        .       84 

In  Massachusetts 84,  85 

In  Maryland,  South  Carolina 85,  86 

In  New  Hampshire 86,  87 

In  Virginia 87,  88 

In  New  York 88,  89 

In  North  Carolina 89,  90 

Inauguration  of  the  new  government     ...       89.  90 


xiv  CONTENTS 

CHAPTER  PAGE 

Narrow  margin  for  the  Constitution      ....       90 
The  general  demand  for  amendment      .        .        .         90,  91 

(Opinions  of  Hamilton,  Wilson,  Jefferson)  .  .  91 
Congress  takes  up  proposed  amendments  .  .  .  92 
The  first  ten  amendments  .  .  .  .  92,  93,  94 
General  discussion  of  them  ....  94,  95,  96 
Formulation  of  proposed  amendments  .  .  96,  97,  98 
Ratification  of  the  amendments      ....      99,  100 

Vermont 100 

The  judiciary  article 100,  101 

Suability  of  a  State 101,  102 

Suability  of  a  State  as  determined  by  the  State  Con- 
stitution (note) 103 

The  Eleventh  Amendment       ....     103,  104,  105 
Origin  of  the  Eleventh  Amendment,  and  State  sover- 
eignty        105,  106 

The  Origin  and  adoption  of   the  Twelfth  Amend- 
ment          106,  107,  108 

The  disputed  election  of  iSoo          ....     109,  no 
Discussion  of  the  Twelfth  Amendment  .        .    in,  112,  113 
Action  of  Congress  on  the  Amendment  .  114,  uSi  i^^ 
General     character    of     the     first     twelve     amend- 
ments        117.  118,  119 

Contrast,  1789  and  the  present 120 

VII.   Contest 

Question  of   the  constitutionality  of  a  bank,   1791 

121,  122,  123 

(Opinions   of    Hamilton,    Jefferson,  Washington) 

121,  122,  123 
The  Jay  Treaty  as  an  issue,  1794   .       .       .       .124,125 

Question  of  appropriation 125 

The  alien  and  sedition  laws,  1798   .        .        .        .     126,  127 

Party  interpretation 126,  128 

The  Kentucky  and  Virginia  Resolutions,  1798,  128,  129,  130 

Principle  of  the  Resolutions 129 

"  Doctrine  of  '98  " 130 

Acquisition  of  the  Louisiana  country,  1803  .       .     130,  131 

The  treaty  examined i3i>  132 

Constitutional  questions  raised        ....     132,  133 

Attitude  of  the  Federalists i33>  ^34 

Attitude  of  the  Republicans ^35 

Decision  of  Chief- Justice  Marshall,  1828       .        •        -135 
Nullification     and     Secession     in     New     England, 

1807,   1812 .  •.    ^3S,  136 

Power  of  the  President  to  summon  the  militia  to 

Federal  service ^37 

General  effect  of  the  War  of  181 2   ....     137,138 
Constitutionality  of  internal  improvements  (1817)    138,  139 

Attitude  of  parties ^39 

Question  of  sovereignty  involved ^39 


CON'i'ENTS 


XV 


CHAPTEE 


141 


Growth  of  the  Missouri  Compromise     .       .       .139 
Question  of  extension  of  slavery  and  its  protection    . 

Petition  of  Missouri  for  admission 

Attitude  of  the  restrictionists 

The  treaty  of  1803  as  an  element 

Slavery  and  the  public  lands    . 

Can  Congress  restrict  slavery? 

Vote  in  Congress        .       .       . 

Maine  and  Missouri  in  one  bill 

The  Thomas  amendment 

The  Taylor  restrictions     . 

The  Houses  in  conference         .        .  _ 

Missouri  meets  in  Constitutional  Convention 

Exclusion  of  free  negroes  agreed  on 
(Benton  provision)      ... 

Can  Congress  impose  conditions  upon  a  Territory? 

Status  of  free  negroes ^45,  146 

(New  York,  Missouri,  Tennessee,  North 
Carolina,  New  Hampshire,  Vermont, 
Pennsylvania,  Massachusetts)     .       .        .146 

The  Clay  Compromise 146,  i47 

General   Pinckney's    evidence    as    to    free   ne- 


PAGE 

140 

•  139 
140 
140 
140 

•  141 
142,  143 
141,  142 

■  145 

•  143 

•  144 

•  144 

•  144 

•  144 
144 

14s 


groes ^47 

Shall  the  electoral  vote  of  Missouri  be  counted? 


148 
148 
149 

149 

149,  150 

150,  151 


The  Compromise  carried  .        - 
Constitutionality  of  the  Compromise  (1857) 
Principles  involved  in  the  Missouri  question 
Discussion  of  the  Compromise 
Vni.     Compromise 

Origin  of  the  Monroe  Doctrine        .        .        ■    152,  1 53,  1 54 

Its  growth ,      •.      •     ^54,  i5S 

Relative  place  of  the  United  States  in  America  .     15S,  150 
The  principles  of  the  Monroe  Doctrine         .       .     i55,  15° 

(See  note,  p.  156) 
The   tariff   of    1824:    construction  of  governmental 


powers 

The  Pan-American  Congress    . 
The  tariff  of  1828  revives  issues 
Nullification  in  South  Carolina 
Protest  of  the  South  . 
The  Webster-Hayne  debate     . 
Examination  of  the  discussion 
Character  of  Webster's  argument 
Attitude  of  Calhoun  .        .       ■ 
The  South  Carolina  Convention,  1832 
President  Jackson's  attitude    . 
Compromise  tariff  of  1833 
Constitutionality  of  nullificarion     .    _ 
Jackson's  interpretarion  of  the  Constitution 
Removal  of  the  deposits   .       •       ■       ■ 


156, 157 

•  157 
.     158 

158, 159 

•  159 
159,  160,  161 
161,  162,  163 

164,  165 

165,  166 
.     167 

167,  168 
.  168 
.  168 
.     169 

169,  170 


xvi  CONTENTS 

CHAPTER  PAGE 

The  bank  controversy 170 

Internal  improvements,  distribution  of  the  surplus  .  171 
Jackson's  theory  of  "  sovereignty  "  .  .  .  .172 
Van  Buren's  ideas  of  the  Constitution   .        .  .172 

American  Anti-Slavery  Society  organized,  1833         .     172 

Question  of  the  right  of  petition 173 

Adoption  of  the  cloture  by  the  House    .        .        .        .173 

Tyler's  idea  of  the  Constitution 173 

The  Texan  question,  1844        .        .        .        .        .        .     174 

Attitude  of  parties  and  of  the  States      .       .       .175 
The  Oregon  question,  1845       .        .        .        .     176,  177,  178 

Attitude  of  the  States 176 

The  Missouri   Compromise   (as  to  slavery)  ex- 
tended to  the  Pacific 

The  California  country 

Question  of  slavery 178, 

Discovery  of  gold  and  rush  to  the  coast 

The  Monterey  Convention 

Shall  California  be  free  soil?  .        .        .179, 

Attitude  of  the  South  to  immigration    .... 

Attitude  of  the  North 180, 

Comparison,  North  with  South,  1849     .        .        .     181, 

New  Kentucky  Constitution 181, 

The  proposed  Wilmot  proviso  ....     182, 

The  Compromise  of  1850: 

Clay's  eight  resolutions 

Calhoun  on  the  resolutions 

Webster  on  the  resolutions  (7th  March)        .     185, 

Seward  on  the  resolutions         ....     186, 
("  Higher  law  "  doctrine) 

Sectional    differences    brought    to  light   by    the 

debate 187,  188, 

IX.     Slavery  Extension 

The  Kansas-Nebraska  country,  1850      .... 
Bill  to  organize  Nebraska  Territory,  1853     . 
Proposed  repeal  of  the  Missouri  Compromise 

"  Squatter  sovereignty  " 

The  Kansas-Nebraska  bill,  1854 

Attitude  of  the  Independent  Democrats 

Principles  involved 192, 

Immigration  to  Kansas 

Conflict  and  civil  war  in  Kansas     .... 

Constitutions:    Topeka,  Lecompton       .        .     193, 

Attitude  of  President  Buchanan     .... 
The  Dred  Scott  case 194,  195, 

Dissenting  opinion  (Curtis) 

Lincoln  and  Douglas  on  Dred  Scott       .  196, 

Nomination  of  Lincoln  and  Hamlin,  i860 

Of  Douglas,  Breckenridge,  Lane      .... 

The  election,  i860 197, 


90 
90 
91 
91 

92 
92 
93 
93 
93 
94 
94 
96 
96 
97 
97 
97 
98 


CONTENTS  xvii 


CHAPTER 


PAGE 


Growth  of  secession  doctrines  .       .       .       .  108100 

South  CaroHna's  "  Declaration  of  the  Causes  of  Seces"-  ' 
sion " 

"Address     to     the     People   'of    'South     Caro-     ^^^ 

Una  .  jQ     200,  201 

bpread  of  secession,  i860,  1861       .        .  201    202 

Organization  of  "  The  Confederate  States  of  Amer-  ' 
ica  "  . 
The  C.  S.  A.  Constitution        .       .  '     202'  20^ 

Exposition  ("  Corner-stone "  address)    .        '  '20'^ 

President  Buchanan  and  Secession  .     204   ^05 

The  Peace  Conference  and  Crittenden  Resolutions   205'  206 
Congress   submits  a   pro-slavery   amendment   to    the 

Constitution,  1861 206,  207   208 

Attitude  of  the  States .208 

President  Lincoln  discusses  secession  in  his  inaugural, 

„  ^^^^     .     •     , 208,  200 

Confascation   of   property   (slaves)    by   the   national 

Government 200 

General  Fremont  declares  slaves  free 
The  Government  repudiates  this  action 
Question  of  treatment  of  fugitive  slaves 
Lincoln  proposes  compensatory  emancipation 
Congress  declares  fugitive  slaves  free     . 

Abolishes  slavery  in  the  District  of  Columbia,  1861 
Agrees   with   England   to   suppress   the   African 

slave  trade 210   211 

Authorizes  negro  regiments '210 

Congress  and  compensatory  abolition  .  .  .211 
Lincoln's  objection  to  the  confiscation  bill  .  .  211 
Army  and  navy  to  use  negro  laborers  .  .  .  .212 
The  Emancipation  Proclamation,  preliminary  and  final 

^^863      _ .        ;     212 

Urganization  of  West  Virginia;    admission    .        .     212,  213 
Lincoln    again    urges    compensatory    emancipation, 

_.^S63 213,  214 

Lincoln  s  policy  of  reconstruction 214 

Reception  by  the  nation  of  the  Emancipation  Proc- 
lamation   214 

Emancipation  in  Missouri         .       .       .       .214,215,216 

AflFairs  in  Missouri '     .  '  217 

Progress  of  abolition  in  Arkansas 218 

In  Virginia 219 

In  Louisiana 219  220 

In  Maryland 220  221 

Nevada  organized  and  admitted,  1864  .       .       .       .  '  221 

Abolition  in  Tennessee 222 

On  the  way  to  national  abolition    .        .        .     222,  223,  224 
X.    The  Commonwealths 

Increase  of  States  and  national  domain,  1800-1S60     225 


209 
209 
210 
210 
210 
210 


XVlll 


CONTENTS 


CHAPTER  PAGE 

Movements  of  population 
The  line  36°  30  .... 

The  three  zones  of  population 
The  new  State  constitutions: 

i8th  century  Bills  of  Rights     . 

Anti-slavery  provisions  (North) 

Right  of  property  in  man  (South) 

Prevalence  of  the  bicameral  system 

Equal  taxing  power  of  the  Houses 

Limitations  of  legislative  power 

Provisions  as  to  banks  (1837)  . 

Land  grants  for  schools     . 

Support  of  schools  made  obligatory 

Revolt  against  "  special  legislation  " 

The  problem    of    apportionment   of 

tion 227,  22 

Single  district  system  (Michigan)    .        .        .    227,  228 

Census,  rural  and  urban  interests   ....      228 

Disappearance  of  religious  and  property  qualifi- 
cations      

Requirement  of  United   States  citizenship 

Growing  recognition  of  national  sovereignty 

Liberal  character  of  the  Wisconsin  constitution 
(1848) 228 

Lotteries 229 

229 
229 


228 
228 
228 


XL 


Missouri  (1820),  clause  as  to  free  negroes 

Illinois  (1848),  similar  clause 

Changed    attitude    toward    the    negro    (1800- 

1860) 229 

Failing  confidence  in  "  checks  and  balances  " 
Multiplication  of  statutes  and  abuse  of  legislation 
Restriction  of  Legislatures 
Increasing  power  of  the  Executive 

Eminent  governors 

Founding  of  charitable  institutions 
Change  from  appointive  to  elective  Judiciary 
Simplification  of  legal  procedure 
The  East  more  conservative  than  the  West 
Extended  jurisdiction  of  inferior  courts 
,      Monetary  limit  of  jurisdiction 
Salaries  of  judges 
Decay  of  regard  for  the  Judiciary 
New  administrative  features    . 
Limitation  of  public  debts 
Evidence  of  new  industrial  life 
Sovereignty,  federal  relations  . 
Interpretation  of  Principles 

Adams  appoints  Marshall  Chief- Justice        .       .       .     236 

Estimate  of  Marshall 236 

Character  of  Marshall 236,  237 


230 
230 
230 

•  230 
230,  231 

■  231 
231 

•  232 
.  232 

•  232 

•  233 

•  233 

•  233 

•  233 
233>  234 

•  234 

•  234 
234,  235 


CONTENTS 


XIX 


CHAPTER 


XII. 


His  decisions,  general  character  of         .        .        .237 
Growing  supremacy  of  the  principles  laid  down  in 

"  The  Federalist  " 237 

The  Supreme  Court  under  Chief-Justice  Taney  .     237,  238 

The  Supreme  Court  prior  to  1801 238 

Marbury  v.  Madison,  1803       ....     238,  239 

U.  S.  V.  Fisher,  1804 239 

Cohens  v.  Virginia,  182 1 239 

McCullough  V.  Maryland,  1819       ....     240 

Am.  Ins.  Co.  v.  Canter,  1828 240 

Osborn  v.  The  Bank,  1824 240 

Weston  V.  Charleston,  1829 240 

Gibbons  v.  Ogden,  1824 240 

Brown  v.  Maryland,  1827 240 

^yilson  V.  Blackbird  Creek  Marsh  Co.,  1829         .     240 

Principles  involved  and  settled  by  these  decisions       237-240 

Martin  v.  Hunter's  Lessee,  1816      ....     241 

Martin  v.  Mott,  1827 241 

U.  S.  V.  Judge  Peters,  1809 241 

Fletcher  v.  Peck,  1810 241 

Sturges  V.  Crowninshield,  1819        ....     241 
Dartmouth  College  Case,  1819        .        .        .        .241 

New  Jersey  v.  Wilson,  1812 242 

Providence  Bank  v.  Billings,  1830  ....     242 

Barron  I).  The  Mayor,  etc.  of  Baltimore,  1833       .      242 

Principles  involved  and  settled  by  these  decisions       241-243 

Changes  in  the  Court  (1830) 243 

Chief-Justice  Taney  appointed,  1835      ....     244 

Mr.  Justice  Story 244 

The  Rhode  Island-Massachusetts  boundary  case  .  244 
Case  of  Groves  v.  Slaughter  (1841)  .  .  .  244,  245 
Case  of  Prigg  v.  Pennsylvania  (1842)  ....  245 
Dissenting  opinion  of  Mr.  Justice  McLean  .  .  .245 
The  Liberty  Party  utilizes  this  opinion  .        .        .     245 

Analogy  to  the  Democratic-Republican  Party,  1796  .  245 
Case  of  Genessee  Chief  v.  Fitzhugh,  1851  .  .  .  246 
Case  of  Dred  Scott  v.  Sandford,  1857  .  .  .  .  246 
Suspension  of  habeas  corpus  by  President  Lincoln      .     247 

Ex  parte  Merryman  (1861) 247 

Ex  parte  Milligan  (1867) 247,  248 

Comment  on  decisions  by  Marshall  and  Taney    .     248,  249 
Amendment 

The  Thirteenth  Amendment : 

Proposed  by  Ashley  in  the  House,  by  Henderson 

in  the  Senate,  1863 250 

Attitude  of  parties 250 

Prospect  of  ratification 250 

Sumner's  phraseology 250 

Debate  and  adoption  in  the  Senate        .        .        .251 
Defeat  in  the  House 251 


XX  CONTENTS 

CHAPTER  PAGE 

Approved  by  Baltimore  Convention      .       .       .251 
Lincoln  favors  the  amendment        .        .        .        .251 

Revived  in  the  House 251 

Opposition  and  objections 251 

Lincoln  urges  adoption,  annual  message,  1864      .     252 
The  amendment  passes,  January  31,  1865     .        .     252 

Ratification 252 

Death  of  Lincoln 252 

Reconstruction: 

Johnson's  policy 252,  253 

Proclamation  of  amnesty 253 

The  Southern  States  assemble  in  Convention: 

Mississippi 253,  254 

Alabama,  South  Carolina,  North  Carolina, 

Georgia,  Florida,  Texas  .  .  .  254,  255 
Afifairs  in  these  States  .  .  .  .  254,  255 
Question  of  domestic  police  ....  255 
Question  of  Federal  relations  .  .  254,  255,  256 
Ratification  of  13th  Amendment  by  South- 
ern States 257 

Problems  in  reconstruction    (1865-6): 

The  negro  race 253-257 

Federal  troops     253-257 

Federal  relations         ....     253-257 
The  question  of  negro  suffrage    (1865-6): 

The  negro  population,  1865      ....     257 
The    government    the    white    man's    North 

and  South 257 

General  attitude  toward  the  negro  .     257,  258 

Probable  effect  at  the  South     ....     258 
The  counter-revolution  at  the  South      .        .     258 
The  Civil  Rights  bill  proposed,  1866      .        .     258,  259 
Vetoed  by  President  Johnson,  his  reasons     .     259 

Passed  over  the  veto 259 

Tennessee  "  restored  to  federal  relations  "  .       .       .     259 
Congress  confers  suffrage  on  negroes  in  the  District 

of  Columbia,  1867 259 

The  veto  and  reasons 259 

Congress  confers  the  suffrage  on  negroes  in  the  Ter- 
ritories, 1867 _ .     259 

The  case  of  Nebraska,  its  constitution  amended  in 

compliance  with  condition  of  Congress,  1867         .     260 
The  Fourteenth  Amendment: 

Proposed  by  Congress,  1867 260 

Its  elements 260,  261 

Objections  and  opposition 261 

Debate  in  the  Senate 262 

Debate  in  the  House 263,  264 

Minority  view 264 

Ratification  doubtful 265 


CONTENTS  xxi 

CHAPTER  PAGE 

Attitude  of  the  States  (hostile)       .       .       .265 

Progress  of  ratification  (North)       ....     265 

Progress  of  ratification  (South)        ....      266 

Report  of  the  North   Carolina  Legislature     266 

Report  of  the  Kentucky  Legislature       .        .266 

The  amendment  rejected 266 

Congress  investigates  the  condition  of  the  negro 

at  the  South,  report 266 

Peonage  abolished  by  Congress,  1867  .  .  .  267 
The  South  divided  into  five  military  districts  .  267 
Veto  of  the  bill  by  the  President  .  .  .  .267 
Bill  as  to  Southern  Constitutions    ....     267 

Veto 267 

The  issue  of  negro  suffrage: 

Maryland,  1867 267 

New  York,  1867-8 267,  268 

Michigan,  1867 267 

The  South,  under  act  of  1867,  frames  new  con- 
stitutions, conferring  negro  suffrage: 

Alabama,  1867 268 

South  Carolina 269 

Florida 269 

Texas  -^ 269 

Ratification  of  the  Amendment  by  Nebraska, 
Iowa,  Arkansas,  Florida,  North  Carolina,  South 
Carolina,  Louisiana,  Alabama  .  .  .  270 
Admission  of  Arkansas,  Florida,  North  Carolina, 
South  Carolina,  Louisiana,  Alabama  by  in- 
dividual bills 270 

The  struggle  over  negro  suffrage  at  the  South   268-270 
Ohio,  Oregon,  New  Jersey  withdraw  ratifica- 
tion   270 

The    Amendment    declared    adopted,    July 

28,  1868 270 

Virginia,  Mississippi,  Texas  reject  the  amend- 
ment and  denied  representation  in  Con- 
gress          271 

Immediate  effect  of  the  amendment  at  the 

South .        .       _.     271 

The  principle  of  the  amendment  an  issue  in  the  presi- 
dential election  of  1868 271 

Grant  and  Colfax  elected 271 

The  Fifteenth  Amendment: 

Proposed,  1867 272 

Purpose ^72 

Debate  and  negative  result 272 

Revival  of  the  amendment       ....     272,  273 
Debate  in  the  House,  objections     .        .        .        .273 

A  conference  asked 273 

Report  of  the  Boutwell  Committee        .       .       -273 


xxii  CONTENTS 

CHAPTER  PAGE 

Republican  estimate  of  the  amendment          .      .     274 
Doubtful  fate  of  the  amendment  before  the  States     274 
Readmission  of  Virginia,  Mississippi  and  Texas 
conditioned  on  their  ratification  of  the  amend- 
ment          274 

Afifairs  in  these  States 274 

Their  ratification  of  the  amendment      .        .        .     275 

Ratification  at  the  North 275 

Rejection  by  some  States         .        .        .        .275 
Purpose,  character,  estimate  of  the  amendment  275,  276 
The  13th,  14th  and  15th  Amendments: 

Adaptations  to  needs  of  the  Nation     .        .     276,  277 
Conduced  to  efficiency  of  the  Constitution  of  the 

United  States 277 

The  English  and  the  American  constitutional  systems 

compared 277 

Sources  of  provisions  in  American  constitutions      277,  278 
Administrative  features  of  these  constitutions  .      278 

Difficulty  in  amending  the  constitution  of  the  United 

States 279 

Ease  of  amending  the  State  constitutions      .       -279,  280 
The  State  constitutions  register  the  evolution  of  gov- 
ernment in  America 280 

Industrial    rights    and    conditions   largely   determine 

constitutional  changes 281 

Important  changes  (acts,  constitutional  amendments) 
1860-1870: 

i86i  Congress  confiscates  rebel  property;  and  de- 
clares forfeit  the  ownership  of  slaves  em- 
ployed against  the  United  States      .        .     281 
Fremont  attempts  to  emancipate  slaves     .      281 

1862  Lincoln  urges  compensatory   emancipation     282 
Great  Britain  and  theUnitedStates  intreaty 

to  suppress  the  slave  trade    .              .        .282 
Hunter  attempts  to  emancipate  slaves         .      282 
Congress  abolishes  slavery  in    District  of 
Columbia;  negroes  allowed  to  give  evi- 
dence in  court 282 

Congress  emancipates  slaves  escaping  from 
masters    in    insurrection;    negro    troops 

authorized 282 

Preliminary  Emancipation  Proclamation    .     282 

1863  Emancipation  Proclamation  .        .      282 

West  Virginia  admitted 282 

Arkansas,    Virginia,    Louisiana,  Maryland 

abolish  slavery 282 

Doctrine  of    paramount   authority  of    the 

United  States  (national  sovereignty)  282,  283 
Baltimore  Convention  demands  abolition  of 

slavery 283 


CONTENTS 


XXlll 


CHAPTER 


xni. 


PAGE 

1864  Nevada  admitted 283 

Missouri,  Tennessee  abolish  slavery     .       .  283 

1865  The  Thirteenth  Amendment  adopted  283 
"  Restoration  "  Conventions  at  the  South .  283 

Slavery  abolished  by  new  constitutions  at 
the  South 283 

Extension  of  the  right  to  vote  to  negroes 
suggested  by  President  Johnson  to  Mis- 
sissippi   ^q4 

1866  Congress  passes  the  Civil  Rights  act    .        .     2S4 
Congress  submits  the  Fourteenth  Amend- 
ment      T..  •     ""* 

The  right  to  vote  extended  m  the  Dis- 
trict of  Columbia  and  the  Territories, 
irrespective  of  race,  color,  or  previous 
condition  of  servitude         .        •        •        ■ 

1867  Nebraska  complies  with  condition   and   is 

admitted 

Congress  abolishes  peonage   .        •        ■        • 

1868  Ratification    of    the    Fourteenth    Amend- 

ment      „      •        •     28s, 

Public  opinion  as  to  negro  suffrage,  see  note 

1870  The  Fifteenth  Amendment  adopted     .     286,  287 

Public  opinion  as  to  the   negro,  1865-1870     2S7 

Reports  to  Congress  as  to  treatment  of  the  negro  at 

the  South        .        .       ■ ^^7, 

The  reconstruction  constitutions     •        -    ^         ^     . 
Criticism  of  Congress  for  extending  the  suffrage  to  the 

negro        

Discussion  of  the  question 

Defects  in  the  work  of  the  Congress  ■     _  • 

Further  criticism  of  Congressional  reconstruction 
The  Commonwealths 

Character  of  the  Civil  War      .        • 
New  States,  new  constitutions,  1870-1900 
The  Southern,  1865    . 
The  Southern,  1867-70     .      _ 
Significance  of  the  word  "  white 
Meaning  of  reconstruction 
Abolition  of  slavery   . 
Changes  in  Bills  of  Rights 
Negro  suffrage  North  and  South 
Later  Southern  constitutions: 
Mississippi,  1890 
South  Carolina,  1895 
Louisiana,  1898  . 
Alabama,  1901    .       .       -^ 
The  "  grandfather  clause 
The  Republican  party  and  negro  suffrage 
Significance  of  negro  suffrage  in  Amencan  history 


292. 


284 

284 
285 

286 

286 


288 
288 

288 
289 
289 
290 

291 
291 
291 
291 
291 
292 
292 
292 
293 

293 
294 
294 
294 
294 
294 
294 


xxiv  CONTENTS 

CHAP  PAGE 

Doctrine  of  national  sovereignty 295 

The  Mississippi  constitution  of  1890      ....      295 

Woman  suffrage  (Wyoming) 295 

In  other  States 295,  296 

Changes  in  Bills  of  Rights: 

Rights  of  labor .     296 

Limitation  of  powers  of  Legislatures  .  .  .  296,  297 
Local  government: 

Counties,  township,  cities 298 

The  pardoning  power 298,  299 

The  Executive: 

Term,  salary,  power 299 

The  Judiciary: 

New  courts,  elective,  appointive     ....     300 

Jury  system 300 

Judges  and  the  party  system 300 

Break  down  of  "  checks  and  balances  "         .       .       .     300 

Banking  and  finance 301 

Length  of  new  constitutions 301 

Federal  relations 301 

Tendency  since  1865 302 

Dates  of  American  constitutions,  note  .       .       .     301,302 
XIV.    Interpretation  of  Principles 

Confederacy  or  Nation 303 

The  Gettysburg  speech  (Lincoln)    ....     303,  304 

Party  use  of  the  word  "  Nation  " 304 

Legal  status  of  the  Confederate  States  of  America        .     304 

Courts,  debts,  land  titles 304 

Domestic  relations 305 

De  facto  and  de  jure  government     ....     305 

The  right  of  secession 305 

Federal  relations 5'^S',  3°^ 

Meaning    of     "  State,"     "  Commonwealth,"     "  Na- 
tion " 306,  307 

The  "  Union  " 306 

Decision  in  Texas  v.  White,  1868 306 

State  sovereignty _  306,  307 

Concurrent  jurisdiction  of  a  State  and  the  United 

States _    .        •       •       .308 

The  suffrage  and  basis  of  representation  .  .  .  308 
Meaning  of  the  Fourteenth  Amendment  .  .  309,  310 
Meaning  of  the  Fifteenth  Amendment  .  .  .  311,  312 
The  reconstruction  acts,  party  view  of  .  .  .  .312 
"  The  United  States  a  Nation,  not  a  League  "  .  .  313 
Enlarged  jurisdiction  of  the  United  States  .  .  -313 
The  legal  tender  cases,  1862-1871       .    313,  314,  3i5.  3^6 

Dissenting  opinion  (Field) 3^7 

The  National  Greenback  Party,  1884    .       .       .       -317 

The  income  tax  cases,  1894 318,  319 

The  Mormon  Church  cases,  1889 3^9 


CONTENTS  XXV 

CHAPTER  PAGE 

Case  of  Murphy  v.  Ramsey 320 

Jurisdiction  over  Porto  Rico,  Hawaii,  the  Philippines, 

1898 321,  322 

Policy  of  the  United  States 322,  323 

Porto  Rico 323,  324 

The  Foraker  Act 324,  325 

The  status  of  our  outlying  possessions  .       .       .     325,  326 
XV.    Summary:  The  Forces  in  the  Civil  Evolution 

The  American  constitutions  evidence  of  civil  evolution  327 
Parliamentary  details  of  government  .  .  .  .328 
Struggle  between  Executive  and  Legislative         .     328,  329 

Evolution  of  the  Judiciary 329,  330 

Amendments  and  their  significance  ....  331 
Gradual  growth  of  the  Administrative  .        .        .332,  333 

Survivals  in  these  constitutions 333 

Experience  writes  these  constitutions     ....     333 

Growth  of  paternalism 333,  334 

The  "  Administrative  "  in  the  national  constitution  .  334 
The  theory  of  the  state  and  its  administration     .       .     334 

Question  of  corporations 335 

Frequency  of  constitutional  amendment  .  .  .  335 
Effect  of  movements  of  population  on  the  organic 

law _ .       .     335 

(Illustration    from    New    York    Constitution   of 

1846-7) 335 

Precedents  and  their  influence 336 

(Illustrations  in  the  West  and  Northwest)  .  .  336 
Function  of  political  parties  in  the  civil  evolution  .  337 
"  The  Federalist  "  silent  as  to  parties    ....     337 

The  work  of  the  majority 33^ 

The  elimination  of  errors  in  civil  procedure  .       .       .     339 

History  not  scientific 340 

Work  of  Hamilton,  of  Jefferson       ....    340,  341 

Their  theories  of  government 342 

The  problem  of  negro  suffrage 343 

The  municipal  problem 343>  344,  345 

Durability  of  the  Federal  Constitution  ....  345 
Society  and  democracy 34^ 

APPENDIX.    The  Constitution,  with  Citation  of  Interpretative 

Cases  347 

INDEX 

To  the  Constitution 39^ 

To  the  History 447 


A  SHORT 
CONSTITUTIONAL   HISTORY 


OF  THE 


UNITED  STATES 


CHAPTER   I 

UNION 


The  civil  history  of  a  people  is  a  dual  theme,  compre- 
hending both  the  organization  and  the  administration  of 
government.  In  America,  as  in  other  countries  in  modern 
times,  organization  preceded  administration ;  indeed,  it 
constitutes  a  distinct  phase  of  the  civil  evolution  through 
which  the  people  of  the  country  have  passed.  The  popu- 
lar conception  of  the  revolution  of  1776  is  of  a  military 
movement,  culminating  in  American  independence,  yet 
the  military  character  of  the  revolution  is  its  least  dis- 
tinguishing quality.  That  revolution  was  essentially 
civil  and  industrial,  and  the  economic  basis  on  which  it 
rested  proved,  under  the  test  of  civil  experience,  to  be  a 
constitutional  re-organization  of  the  forces  of  the  state. 
From  a  military  point  of  view  the  revolution  was  a  small 
affair.  Not  that  the  continental  army  or  its  officers  lacked 
ability,  or  that  the  battles,  sieges,  and  fortunes  of  the  war 
are  without  grandeur  when  viewed  in  the  light  of  results. 
But  the  American  revolution  was  not  a  great  military 
movement  such  as  we  contemplate  when  we  follow  the 
fortunes  of  France  under  Napoleon,  or  England  under 


2         A   CONSTITUTIONAL   HISTORY   OF 

Marlborough,  or,  later,  the  fortunes  of  the  Union  and  of  the 
Confederacy  in  the  armies  of  Grant  and  Lee.  The  revo- 
lution was  a  great  civil  adjustment  affecting  both  England 
and  America,  and  conducing  in  each  country  to  a  clearer 
understanding  of  the  nature  of  representative  government 
on  a  constitutional  basis.  It  is  when  we  examine  the 
revolution  as  a  step  in  the  more  perfect  organization  and 
administration  of  government  that  we  approach  its  true 
meaning. 

But  the  organization  and  the  administration  of  gov- 
ernment are  not  the  same.  If  by  "  government  "  we  mean 
"  the  public  business  "  we  may  easily  simplify  the  theme 
we  would  examine.  American  statesmen  of  the  eight- 
eenth century  —  the  men  whom  posterity  fondly  calls 
the  Fathers  —  were  occupied  with  the  organization  of  rep- 
resentative government.  It  was  the  pressing  problem  of 
their  day,  and  to  its  solution  they  gave  an  energy  and  an 
effectiveness  which  have  enshrined  their  names  in  the 
hearts  of  all  lovers  of  liberty  and  justice.  Nor  did  they 
witness  the  completion  of  the  great  task ;  it  was  taken  up 
by  their  successors,  and  continued  to  be  the  large  problem 
of  the  American  people  until  after  the  civil  war. 

For  the  evidence  of  the  truth  of  this  declaration  we 
must  turn  to  the  history  of  the  American  people.  The 
record  is  open  to  all  men.  Americans  were  the  first 
people  to  reduce  their  civil  organization  to  a  written  form  ; 
the  first  to  express  the  fundamentals  of  government  in  a 
written  constitution  amendable  as  the  public  judgment 
and  the  public  conscience  might  demand. 

The  constitutional  history  of  European  peoples  centres 
about  some  dynasty.  The  popular  will,  save  perhaps  in 
England,  is  ever  subordinate  to  the  interests  of  a  ruling 
family.  What  of  privilege  or  right  has  been  won  has  been 
won  after  long  and  arduous  struggles  in  which  the  com- 
mon people  figure  as  the  aggrieved  and  the  aggressor. 
The  constitutional  history  of  European  peoples  possesses 
a  military  quality  wholly  and  happily  lacking  in  America. 
We  record  our  constitutional  development  in  written  laws 
enacted  by  the  will  of  the  governed.  Of  administrative 
law  our  records  are  silent  because  it  has  never  existed 
among  us.     We  know  nothing  of  edicts  or  decrees,  be- 


THE   UNITED    STATES  3 

cause  government  in  America  rests  not  upon  a  military 
but  a  civil  foundation. 

The  constitutional  history  of  America  is  therefore  a 
history  of  popular  government  and  of  popular  govern- 
ment in  a  dual  form,  —  national  and  state.  Our  civil 
development  discloses  this  form  in  a  familiar  aspect  as 
general  and  local,  —  whose  evolution  is  recorded,  in  a 
large  way,  in  the  federal  constitution  and  in  the  consti- 
tutions of  the  several  states.  But  these  constitutions  are 
alike  founded  upon  principles  and  essentially  upon  the 
same  principles.  We  turn  therefore  to  the  history  of  the 
states  as  recorded  in  their  successive  constitutions  for  an 
adequate  interpretation  of  these  principles ;  or,  we  may 
turn  to  the  federal  constitution  itself,  in  its  inception, 
formation,  adoption  and  later  amendment,  and,  in  the 
examination  we  discover  that  though  our  civil  system  is 
dual,  state  and  nation  rest  on  common  principles. 

In  this  volume  I  purpose  to  narrate  the  history  of  that 
civil  evolution  which  has  made  America  what  it  is  to-day. 
This  narrative  is  essentially  one  of  principles  and  the  ap- 
plication of  principles.  It  relates  how  the  people  of  the 
thirteen  colonies  became  the  people  of  the  thirteen 
states,  preserving  them  in  their  autonomy  yet  organizing 
them  in  a  more  perfect  union.  It  relates  the  struggle  out 
of  which  sprang  the  first  constitutions  of  government  in 
our  country  and  later  that  Constitution  which  now  for 
more  than  a  century  has  been  recognized  as  the  supreme 
law  of  the  land.  It  relates  the  interpretation  which  the 
Fathers  gave  us  of  the  principles  on  which  our  institutions 
are  based.  Continuing,  the  narrative  relates  how  these 
principles  were  for  many  years  misunderstood  and  mis- 
applied, resulting  in  one  of  the  most  terrible  civil  wars 
known  to  history.  It  relates  also  the  course  of  that  cor- 
rective process  by  which  the  American  people  have  made 
provision  for  the  authoritative  interpretation  of  the  prin- 
ciples of  their  government,  —  by  the  courts  of  law,  —  a 
process  perhaps  more  refined  than  any  hitherto  utilized  in 
human  government. 

Throughout  this  narrative  I  have  sought  to  recognize 
the  fundamental  importance  of  the  state  constitutions  as 
immediate  and  responsive  exponents  of  the  principles  of 


4         A   CONSTITUTIONAL   HISTORY   OF 

g-ovemment  in  America.  In  the  state  instruments  there 
may  be  found  that  closer  adjustment  ever  going  on  in  the 
rep'ubhc, — the  adaptation  of  means  to  ends  in  government 
by  means  of  organic  law. 

It  is  in  these  state  instruments  that  we  see  exemplified 
the  tendencies,  from  time  to  time,  in  civil  administration. 
The  entire  body  of  American  laws  illustrates  this  process 
ever  going  on.  Thus  it  follows  that  both  laws  and  consti- 
tutions of  government  are  records  of  attempts  to  adjust 
the  form  and  the  administration  of  the  state  to  the  prevail- 
ing spirit  of  interpretation  of  civil  principles ;  and  we  all 
know  that  interpretation,  like  the  state  itself,  is  ever 
changeable,  the  civil  organization  being  itself  in  a  state 
of  flux. 

It  is  to  secure  permanency  and  order  that  written  con- 
stitutions are  made  and  laws  are  enacted.  The  constitu- 
tional history  of  any  people  is  the  record  of  their  efforts 
to  secure  this  permanency  and  this  order.  In  America 
the  attempt  has  taken  unto  itself  a  dignity  commensurate 
with  the  magnitude  of  the  task.  No  fewer  than  one  hun- 
dred and  forty  written  constitutions  have  been  framed, 
and  laws  which  fill  more  than  four  thousand  volumes  have 
been  enacted  for  this  purpose.  Nor  is  this  all.  Wars 
have  been  waged  and  thousands  of  lives  have  been  sacri- 
ficed that  this  purpose  may  be  reaHzed.  Nor  has  the 
nation  lacked  strength  nor  territory  for  its  activities.  Re- 
publican institutions  have  here  found  an  ample  field.  The 
story  is  unique  in  the  annals  of  men.  No  other  people  has 
run  a  like  course.  And  there  is  reason  for  believing  that 
American  institutions  are  yet  in  their  infancy. 

The  thirteen  colonies  which  revolted  against  Great 
Britain  were  independent  each  of  the  other ;  but  the 
struggle  for  independence  brought  them  into  a  new  rela- 
tion which  compelled  the  formation  of  a  union.  Until  the 
outbreak  of  hostilities  in  1775  no  active  steps  toward  the 
formation  of  such  a  union  had  been  taken.  There  had 
been  attempts  at  union  in  colonial  times  but  all  save  one 
ended  in  failure.  The  New  England  union  of  1643  was 
the  first  and  the  last  league  of  the  colonies.  It  was  a  local 
union ;  and  its  small  extent,  its  limited  jurisdiction,  and 
its  brief  existence  precluded  it  from  having  the  force  of 


THE   UNITED    STATES  5 

a  precedent.^  During  the  one  hundred  and  thirty  years 
following  the  formation  of  this  New  England  league,  four- 
teen different  propositions  for  colonial  union  emanated 
from  various  quarters,  —  some  English,  some  American,^ 
—  but  none  of  these  propositions  was  more  than  a  scheme 
on  paper.  Those  of  English  origin  were  monarchical  in 
character  and  based  on  the  theory  that  the  English  col- 
onies in  America  should  be  united  in  a  federal  government 
on  a  military  basis. 

The  plans  of  American  origin  were  more  liberal  and 
proposed  a  federal  government  on  a  popular  basis,  the 
essential  element  of  which  was  the  colonial  assembly. 
This  body  was  recognized  as  the  representative  of  the 
people.  In  the  proposed  leagues  of  American  origin  the 
assemblies  were  to  choose  delegates  to  a  colonial  con- 
gress, but  its  powers  were  not  closely  defined.  The  vital 
characteristic  of  the  American  propositions  was  their 
latent  democracy.  The  power  to  levy  taxes  was  acknowl- 
edged by  them  to  reside  in  the  assemblies.  English  and 
American  plans  were  alike  in  providing  for  a  captain- 
general,  who  should  be  sent  out  to  the  colonies  by  the 
crown ;  whose  authority  should  be  supreme  in  America, 
though  subordinate  to  that  of  the  crown,  and  whose  com- 
pensation should  be  paid  by  the  colonies. 

The  nearest  approach  to  colonial  confederation  was 
made  at  Albany  in  1754.  The  plans  there  proposed  agreed 
in  providing  for  a  military  executive,  but  differed  in  their 
provision  for  the  legislature.  Of  these  plans,  that  sub- 
mitted by  Dr.  Franklin  is  best  known.  It  avoided  ex- 
tremes by  proposing  a  colonial  legislature,  which  should 
control   taxation ;    and   an   executive,   appointed   by   the 

1  It  consisted  of  Massachusetts,  New  Plymouth,  Connecticut,  and 
New  Haven,  and  was  in  force  forty  years.  Its  jurisdiction  was  limited 
and  chiefly  for  military  purposes.  It  was  distinctively  an  ecclesiastical 
union.  For  the  text  of  the  articles  of  union,  see  Preston,  p.  85.  For  an 
account  of  all  the  unions  proposed  during  colonial  times,  see  the  author's 
"Constitutional  History  of  the  United  States,"  vol.  i,  pp.  166-215.  For 
the  relation  of  New  Hampshire  to  the  Union,  see  A.  S.  Batchellor's 
"Government  and  Laws  of  New  Hampshire  before  the  Establishment 
of  the  Province,  1623-1679."     Manchester,  N.  H.,  1904. 

2  For  an  account  of  these  plans,  see  the  author's  "Constitutional 
History  of  the  United  States,  1765-1895,"  vol.  i,  pp.  185-213. 


6         A    CONSTITUTIONAL    HISTORY    OF 

crown,  who  should  be  practically  independent  of  the  legis- 
lature. As  a  scheme  for  colonial  federation  it  was  ad- 
mirable, but  it  failed  because  the  trend  of  affairs,  obscure 
in  1754,  was  toward  the  formation  of  a  new  nation  and 
an  independent  government. 

One  of  the  chief  causes  of  American  independence  was 
the  attempt  of  Parliament  to  establish  a  military  type  of 
government  in  America.  The  controversy  over  the  Stamp 
Act,  passed  in  1765,  and  all  that  that  controversy  implied, 
culminated  in  the  call  for  an  American  congress,  first 
sent  out  by  Massachusetts  on  July  25th  of  that  year.  The 
response  was  immediate  and  favorable.  On  the  19th  of 
October  of  that  year  delegates  from  nine  colonies  met  in 
New  York  City  and  organized  as  a  continental  congress.^ 
This  meeting,  strictly  speaking,  was  a  convention.  The 
delegates  had  no  authority  to  legislate,  but  only  to  confer 
together  on  the  condition  of  the  country.  Each  colony 
present  was  allowed  one  vote  in  the  proceedings  of  the 
congress,  and  thus  early  was  recognized  the  autonomy  of 
each  colony,  —  soon  to  become  a  state.  The  recognition 
was  the  germ  of  state  sovereignty. 

The  congress  was  in  session  three  weeks.  On  the  25th 
of  October  it  sent  forth  a  declaration  of  rights  which 
stated  the  claims  and  grievances  of  the  colonies  and  their 
understanding  of  the  principles  of  government.  This 
declaration  was  the  parent  of  innumerable  declarations 
of  the  rights  and  privileges  of  the  American  people.  Yet 
upon  close  investigation  it  will  be  found  that  the  celebrated 
declaration  of  1765  was  not  wholly  new.  Rather  was  it 
a  compilation  of  earlier  statements  and  declarations  of  like 
nature  which  had  been  made  at  various  times  by  colonial 
assemblies.  The  New  York  congress  gathered  up  these 
declarations  and  expressed  them  in  general  form,  —  a 
statement  of  the  doctrine  of  the  rights  of  the  colonists  as 
Englishmen. 

This  doctrine  ran  contrary  to  the  accepted  legal  inter- 
pretation of  the  foundation  of  government :  namely,  that 
it  is  a  grant  from  the  crown,  and  marked  a  departure  in 

1  Massachusetts,  Connecticut,  Rhode  Island,  New  York,  Pennsyl- 
vania, New  Jersey,  Maryland,  Delaware,  and  Soutb  Carolina. 


THE   UNITED    STATES  7 

the  theory  of  g-overnment  which  henceforth  should  be 
conceived  as  resting  upon  the  natural  rights  of  all  men 
instead  of  upon  the  privileged  rights  of  a  few.  Though 
departing  thus  radically  from  precedents  in  its  statement 
of  the  theory  of  government,  the  congress  maintained  the 
old  doctrine  of  allegiance  to  the  crown.  But  it  made  a 
clear  disclaimer  of  the  constitutional  right  of  Parliament 
to  tax  America  without  its  consent.  "  The  right  to  tax," 
so  it  was  declared,  "  resides  only  in  the  local  assemblies." 
For  obvious  reasons  the  colonies  could  not  be  repre- 
sented in  Parliament.  The  distance  between  England 
and  America  was  too  great  to  make  representation  practi- 
cable. The  declaration  concluded  with  a  claim,  for  the 
Americans,  to  all  the  ancient  and  undoubted  rights  of 
Englishmen. 

Parliament  discovered  that  the  Stamp  Act  could  not  be 
executed  in  America  without  violence ;  but  this  act  was 
not  the  only  one  of  which  the  Americans  complained :  two 
others,  known  as  the  Townshend  acts,  both  passed  for 
the  purpose  of  raising  revenue  in  America,  were  equally 
unpopular.^  After  a  long  and  bitter  debate  Parliament 
repealed  the  Stamp  Act,^  but  at  the  same  time  declared  its 
right  to  tax  the  colonies.  The  news  of  the  repeal  was 
received  in  America  with  every  manifestation  of  joy ;  but 
joy  turned  to  sorrow  at  the  later  news,  that  Parliament  had 
levied  a  tax,  though  trifling  in  amount,  on  tea  and  on  a 
few  other  articles,  not  so  much  for  the  purpose  of  revenue 
as  to  assert  the  right  of  taxation.  In  asserting  this  right, 
Parliament  raised  the  issue  which  ultimately  lost  England 
the  thirteen  colonies. 

In  February,  1768,  Massachusetts  again  invited  the 
colonies  to  confer  and  co-operate  addressing  her  circular 
letter  to  the  speakers  of  the  assemblies  in  which  she  boldly 
asserted  that  the  rights  of  America  must  be  defended. 
The  Massachusetts  letter  was  welcomed  by  every  as- 
sembly. The  several  colonies  were  already  in  a  revolu- 
tionary state.  In  the  royal  colonies  the  assemblies  boldly 
ignored  the  governor,  —  the  representative  of  the  crown, 

^  For  an  account  of  them,  see  Trevelyan's  "  American  Revolution," 
part  i,  chap.  ii. 
*  March  7,  1766. 


8         A    CONSTITUTIONAL   HISTORY    OF 

—  or  circumvented  him  by  organizing  as  a  provincial 
congress,  which  elected  delegates  to  the  general  congress. 
This  assembled  in  Philadelphia.^  Fifty-five  delegates, 
representing  together  all  the  colonies  except  Georgia, 
were  in  attendance.  Some  were  chosen  by  the  assemblies, 
some  by  county  committees  assembled  in  convention, 
others  by  provincial  congresses.  Thus  apparently  their 
authority  was  not  equal,  but  upon  assembling,  the  cre- 
dentials of  all  were  accepted,  and  the  congress  began  its 
work. 

This  second  congress  differed  widely  from  that  of  1765 
in  that  the  purpose  of  its  meeting  was  more  specific  and 
the  credentials  of  its  delegates  essentially  more  represen- 
tative of  the  sentiment  of  the  country.  The  idea  of  union 
was  becoming  universal;  the  revolution  had  progressed 
into  a  more  positive  stage.  The  time  had  come  for  taking 
steps  toward  the  formation  of  a  national  government: 
independence  was  at  hand.  The  instructions  to  the  dele-, 
gates  varied,  but  every  commission  either  expressed  or 
implied  the  popular  will  that  the  congress  should  consider 
the  unnecessary  restraints  and  burdens  on  trade  which 
the  late  acts  of  Parliament  had  imposed,  and  procure  a 
redress  of  grievances.  Here,  it  will  be  observed,  was  a 
two-fold  duty:    partly  political,  partly  economic. 

The  congress  had  been  in  session  three  weeks  when 
Galloway,  a  Pennsylvania  member,  submitted  a  plan  of 
union,  the  most  important  provisions  of  which  were  those 
for  the  appointment  of  a  captain-general  by  the  crown, 
and  the  election  of  a  congress  by  the  assemblies.  The  plan 
was  briefly  discussed,  but  soon  recognized  as  antagonistic 
to  popular  government,  and  later  was  expunged  from 
the  journal.  Its  fate  plainly  showed  that  American  union 
could  not  be  formed  upon  a  monarchical  basis.  Mean- 
while a  number  of  committees  had  reported.  The  com- 
mittee on  the  rights  of  the  colonies  reiterated  the  substance 
of  the  famous  English  bill  of  rights  of  1689,  and  of 
the  declaration  of  rights  made  by  the  congress  in  1765. 
It  however  went  further  than  the  last  named  declaration 
by  claiming  that  American  rights  were  not  only  natural 

1  September  5,  1774. 


THE   UNITED    STATES  9 

but  constitutional;  that  is,  incident  and  necessary  to  the 
plan  of  government  under  which  English  people  were 
living. 

The  report  of  the  committee  on  trade  and  manufactures 
was  of  an  entirely  different  order,  for  it  involved  not 
merely  the  theory  but  the  administration  of  government. 
It  constituted  the  basis  of  that  celebrated  agreement 
known  as  the  solemn  league  and  covenant,  the  Associa- 
tion of  1774.  By  this  it  was  agreed  that  a  policy  of  non- 
importation and  non-consumption  of  English  goods,  and 
of  non-exportation  to  Great  Britain,  should  be  followed. 
All  trade  with  Great  Britain  and  her  colonies  should  cease 
after  December  i,  1775.  Agriculture,  the  arts  and  man- 
ufactures should  be  encouraged.  The  slave  trade  too 
should  cease.  This  agreement  was  an  economic  event  of 
the  highest  importance.  It  was  the  first  great  act  in  the 
formation  of  the  American  Union.  Many  years  later  it 
was  spoken  of  by  President  Lincoln  as  "  the  parent  of  the 
Union  " ;  and  President  John  Adams  described  it  as  "  the 
first  expression  of  the  sovereign  will  of  a  free  nation  in 
America."  Of  the  many  declarations  which  this  congress 
sent  forth,  this  of  the  industrial  rights  of  America  made 
clear  the  real  causes  of  the  revolution.  The  time  had 
come  when  the  colonies  were  self-supporting  and  fully 
able  to  assume  the  duties  and  responsibilities  of  nation- 
ality. This  was  the  real  significance  of  the  association 
of  1774. 

The  congress  of  1774  was  a  reform  convention,  called 
solely  to  consider  the  best  means  of  redressing  public 
grievances.  Its  members  had  no  thought  of  American 
independence.  The  majority  of  them  had  little  doubt  that 
the  causes  of  the  evils  of  which  the  country  was  complain- 
ing would  be  removed.  They  knew  very  well  that  under 
English  rule  the  colonies  were  prospering  and,  if  they 
were  at  all  familiar  with  history,  they  must  have  known 
that  in  their  safety,  freedom,  and  happiness  the  American 
people  at  this  time  had  more  to  be  thankful  for  than  any 
other  colonial  people  in  ancient  or  modern  times.  But 
events  were  swiftly  moving  toward  a  very  different  con- 
clusion than  that  which  the  majority  of  the  delegates  were 
anticipating.     They  adjourned  on  the  26th  of  October  to 


10       A    CONSTITUTIONAL   HISTORY   OF 

meet  again  on  the  loth  of  May,  1775,  unless,  meanwhile, 
the  public  grievances  of  which  they  complained  should  be 
redressed  by  Parliament. 

The  loth  of  May  came  and  the  congress  again  as- 
sembled. The  ministry  had  not  made  concessions ;  rather, 
the  prospect  was  of  the  enactment  of  a  series  of  laws  all 
in  the  spirit  of  the  tea  tax.  Lord  North's  policy  of  con- 
ciliation, framed  early  in  1775,  did  not  abandon  the  claim 
of  right  to  tax  the  colonies ;  it  left  the  matter  wholly  at 
the  discretion  of  Parliament.  Most  of  the  delegates  were 
returned  to  Congress,  and  all  the  colonies,  save  Georgia, 
were  represented.  Since  the  last  meeting,  military  affairs 
in  New  England  had  reached  such  a  stage  that  reconcilia- 
tion with  the  British  government  was  practically  impos- 
sible. The  time  had  come  when  the  test  must  be  made 
whether  the  monarchical  or  the  democratic  idea  of  gov- 
ernment should  prevail  in  America.  The  delegates  clearly 
understood  the  issue  and  proceeded  to  define  it  in  a  series 
of  remarkable  acts.  Their  efforts  to  persuade  the  people 
of  Canada  to  join  with  them  failed,  as  likewise  did  their 
attempts  to  conciliate  Parliament,  the  King,  and  the 
English  people.  But  their  appeal  to  America  aroused  the 
sentiment  of  union  :  it  awakened  a  new  nation.  The  time 
had  come  for  the  colonies  to  become  states,  and  Congress 
took  the  initiative  by  urging  the  change.  Within  two 
years  all  the  colonies  organized  state  governments  under 
written  constitutions.^ 

A  series  of  measures  was  now  adopted ;  some  of  a 
civil,  others  of  a  military  nature.  By  this  congress  a  be- 
ginning was  made  of  the  Departments  of  War,  Navy, 
State,  and  the  Post-Ofifice.  Washington  was  chosen  com- 
mander-in-chief, and  the  militia  encamped  near  Boston, 
and  organized  in  other  parts  of  the  Union,  were  adopted 
as  the  continental  army.  The  Congress  acted  as  the  rep- 
resentative of  the  united  colonies  of  America,  but  as  yet 
no  distinctive  national  name  was  used.  Undoubtedly  the 
delegates  acted  fully  up  to  their  authority.  They  had  not 
been  empowered  to  levy  taxes  or  to  declare  war,  but  their 
acts  necessitated  the  imposition  of  taxes  and  the  prepara- 
tion for  war.  The  delegates  assumed  that  they  had  the 
^  For  an  account  of  them,  see  chap.  v. 


THE   UNITED    STATES  ii 

sanction  of  public  opinion,  and  acted  as  a  representative, 
federal  body.  Thus,  on  the  22d  of  June  they  ordered  the 
emission  of  bills  of  credit  to  the  amount  of  two  millions 
of  Spanish  dollars  for  the  defence  of  America,  and  to  the 
redemption  of  these  bills  of  credit  pledged  the  credit  of 
the  colonies  represented.  This  was  a  federal  act  of  the 
highest  importance,  and  the  roots  of  its  authority  ran  deep 
into  the  foundations  of  American  union. 

On  the  13th  of  September,  1775,  Congress  reassembled, 
after  a  six  weeks'  adjournment,  in  full  possession  of  evi- 
dence of  popular  sanction  of  its  acts.  All  its  appeals  and 
protests  to  the  King,  to  Parliament,  and  to  the  English 
people  had  been  in  vain.  The  true  condition  of  affairs 
was  more  perfectly  realized  by  the  delegates  than  before ; 
men  were  talking  of  continental  interests,  of  a  continental 
congress,  and  of  independence.  Early  in  1776  Thomas 
Paine  had  urged  independence  in  Common  Sense,  — 
one  of  the  most  famous  of  political  pamphlets.  From 
hundreds  of  town  meetings,  from  county  conventions,  and 
from  committees  of  correspondence,  active  all  over  the 
land,  was  now*  heard  the  demand  for  independence,  — 
but  Congress  hesitated ;  the  step  was  perilous,  and  for 
reasons  of  expediency  the  members  delayed  a  declaration 
of  independence.  New  England  and  the  South  were 
sure,  but  the  Middle  Colonies  were  yet  doubtful.  Inde- 
pendence must  be  the  act  of  a  united  America. 

On  the  15th  of  May,  1776,  Virginia  instructed  its  dele- 
gates to  recommend  to  Congress  the  adoption  of  a  decla- 
ration of  American  independence,  and  on  the  7th  of  June, 
Richard  Henry  Lee,  of  Virginia,  chosen  by  his  colleagues 
to  move  the  resolution,  formally  proposed  the  resolution, 
which  was  seconded  by  John  Adams,  of  Massachusetts, 
that  "  These  united  colonies  are  and  of  right  ought  to  be 
free  and  independent  states ;  that  they  are  absolved  from 
all  allegiance  to  the  British  crown  and  that  all  political 
connection  between  them  and  the  state  of  Great  Britain 
is  and  ought  to  be  utterly  dissolved."  Four  days  later 
Thoitias  Jefferson,  John  Adams,  Benjamin  Franklin, 
Roger  Sherman,  and  Robert  R.  Livingston  were  ap- 
pointed a  committee  to  prepare  a  declaration  of  inde- 
pendence.   On  this  day  another  committee  was  appointed 


12       A    CONSTITUTIONAL   HISTORY   OF 

to  prepare  Articles  of  Confederation.  Jefferson's  com- 
mittee reported  on  the  ist  of  July,  and  two  days  later  its 
report,  somewhat  amended  during  debate,  was  adopted. 
On  the  4th  of  July  the  draft  of  the  Declaration  of  Inde- 
pendence was  engrossed  and  proclaimed  to  the  world. 

Meanwhile  the  committee  appointed  to  prepare  Articles 
of  Confederation  drew  up  a  plan  of  government,^  and  sub- 
mitted it  to  Congress  on  the  12th  of  July,  through  John 
Dickinson,  its  chairman.  His  report  followed  closely  a 
plan  of  union  '  which  had  been  submitted  to  Congress  by 
Dr.  Franklin  on  the  12th  of  July  of  the  preceding  year. 
As  the  first  serious  attempt  to  embody  the  principles  of 
American  union,  Dickinson's  revision  of  Franklin's  sketch 
is  of  great  interest.  It  discloses  the  ideas  which  prevailed 
at  the  time  of  the  revolution  respecting  the  relation  of  the 
states  to  each  other,  and  to  any  general  government  which 
might  be  formed ;  and  it  also  discloses  what  the  founders 
of  our  national  government  conceived  were  its  essential 
qualities. 

Dickinson's  plan  recognized  the  independence  and  sov- 
ereignty of  each  state,  but  at  the  same  time  prescribed 
limitations  on  the  states,  —  a  contradiction  as  to  sover- 
eignty which  ran  through  the  whole  system.  This  con- 
tradiction was  the  result  of  the  attempt  of  the  plan  to 
divide  sovereignty,  asserting,  by  implication,  general  sov- 
ereignty in  the  Confederation,  and  residuary  sovereignty 
in  each  of  the  states.  The  division  is  unphilosophical,  but 
the  doctrine  of  residuary  sovereignty  has  been  repeatedly 
affirmed  by  the  supreme  court  of  the  United  States.^  The 
limitations  prescribed  for  the  states  were  a  clear  invasion 
of  their  sovereignty,  and  tended  to  develop  in  the  public 
mind  the  germs  of  the  idea  of  national  sovereignty.*  But 
the  fundamental  idea  of  the  Articles  was  of  a  plan  of  gov- 
ernment by  which  every  power,  jurisdiction,  and  right 
which  was  not  expressly  delegated  to  the  United  States 

1  Elliot,  vol.  V,  p.  no. 

2  Franklin's  Works  (Bigelow's  Edition),  vol.  i,  p.  243;  vol.  ii,  p.  343; 
vol.  V,  p.  548. 

'  A  typical  presentation  of  this  doctrine  is  Texas  v.  White,  7  Wallace, 
70c  (i<S68).  The  doctrine  is  explicitly  stated  in  "The  Federalist," 
(Lodge's  Edition),  Nos.  XXXII,  LXX'XI. 

*  See  Articles  of  Confederation  (Bigelow's  Franklin),  vol.  v. 


THE   UNITED    STATES  13 

was  retained  by  the  states  individually.^  The  administra- 
tive details  of  Dickinson's  plan  were  taken  almost  wholly 
from  Franklin's  sketch.  The  exclusive  rights  of  the 
United  States  enumerated  ^  were  characteristic  of  a  sov- 
ereign power.  The  chief  limit  on  the  United  States  related 
to  the  power  of  taxation  and  the  fixing  of  the  revenue. 
In  these  and  in  several  other  particulars  no  steps  could  be 
taken  without  the  consent  of  nine  states,  a  condition  which 
tied  the  hands  of  the  new  government.  The  Articles  were 
to  be  submitted  to  the  assemblies  for  ratification,  a  clear 
recognition  of  the  potency  of  the  residuary  sovereignty 
of  the  states. 

On  July  22,  1776,  Dickinson's  report  was  taken  up  by 
Congress,  and  was  debated,  at  times,  until  the  20th  of 
August,  when  a  new  draft  was  reported,  styled  "  Articles 
of  Confederation  and  Perpetual  Union  between  the 
States."  In  Dickinson's  first  draft  the  term  "colonies"  had 
been  used.  The  revised  plan  was  debated  in  Congress  at 
irregular  intervals  during  the  following  year,  and  many 
amendments  were  proposed.  The  most  interesting  dis- 
cussion was  of  the  basis  and  apportionment  of  representa- 
tion, a  subject  which  brought  up  the  institution, — slavery. 
Finally  a  compromise  was  agreed  to:  that  five  slaves 
should  be  counted  as  three  freemen,  a  settlement  which 
came  to  be  known  as  "  the  federal  number,"  the  three- 
fifths,  or  federal  ratio.  It  was  also  decided,  though  not  as 
a  compromise,  that  each  state  in  the  confederation  should 
have  one  vote  in  Congress.^ 

On  November  15,  1777,  the  Articles  as  amended  in 
debate  were  adopted  by  Congress,  and  two  davs  later 
were  sent  to  the  assemblies  for  ratification.  During  the 
following  seven  months  the  assemblies  discussed  them 
and  proposed  many  amendments,  none  of  which  Congress 
approved. 

The  principal  difficulty  in  the  way  of  securing  ratifica- 
tion of  the  Articles  was  the  western  lands.  All  the  states, 
except  Rhode  Island,  New  Jersey,  Delaware,  and  Mary- 

1  See  Articles  of  Confederation  (Bigelow's  Franklin),  vol.  ii. 

2  Article  IX.  ,  .      ,    ..r- 

8  For  an  account  of  the  debate  on  the  Articles,  see  the  author  s  Con- 
stitutional History  of  the  United  States,  1765-1895,"  vol.  i,  pp.  220-233. 


14       A   CONSTITUTIONAL    HISTORY    OF 

land,  made  some  claims  to  lands  lying  directly  to  the 
west.  The  area  in  dispute  extended  from  the  present 
western  boundary  of  New  York,  Pennsylvania,  Maryland, 
Virginia,  the  Carolinas,  and  Georgia,  to  the  Mississippi. 
Maryland,  New  Jersey,  and  Delaware  demanded  that  this 
area  should  be  surrendered  to  the  United  States  by  the 
states  claiming  it,  and  from  its  sale  a  fund  be  created  for 
the  use  of  the  general  government.  The  states  having  no 
western  land  plainly  intimated  that  they  would  not  ratify 
the  Articles  unless  the  cession  was  made.  The  response 
of  the  states  was  speedy  and  generous.  In  1780  New 
York  ceded  to  the  general  government  all  its  claim  to 
western  lands  and  Connecticut  in  the  same  year  indicated 
her  willingness  to  make  a  like  cession.  There  was  every 
evidence  that  Virginia  would  follow  their  example.  As- 
sured now  of  the  ultimate  cession  of  the  western  lands  to 
the  general  government,  Maryland,  the  last  state  to  act 
on  the  Articles,  authorized  her  delegates  in  Congress  to 
sign  them,  and  their  signatures,  affixed  on  March  i,  1781, 
completed  the  work  of  ratification.  On  the  following  day 
Congress  met  for  the  first  time  under  the  Articles,  which 
to  all  intents  and  purposes  were  a  national  constitution. 

The  Articles  were  in  process  of  formation  and  ratifica- 
tion nearly  five  years,  during  which  time  their  defects  as 
a  plan  of  government  had  been,  in  a  measure,  realized. 
"  The  great  and  radical  vice  in  the  construction  of  the 
existing  confederation,"  wrote  Alexander  Hamilton,^  "  is 
in  the  principle  of  legislation  for  the  states,  or  govern- 
ments, in  their  corporate  or  collective  capacities,  and  as 
contra-distinguished  from  the  individuals  of  which  they 
consist.  Though  this  principle  does  not  run  through  all 
the  powers  delegated  to  the  union,  yet  it  pervades  and 
governs  those  on  which  the  efficacy  of  the  rest  depends. 
Except  as  to  the  rule  of  appointment,  the  United  States 
has  an  indefinite  discretion  to  make  requisition  for  men 
and  money ;  but  they  have  no  authority  to  raise  either 
by  regulations  extending  to  the  individual  citizens  of 
America.  The  consequence  of  this  is,  that  though  in 
theory  their  resolutions  concerning  those  objects  are  laws, 

1  "The  Federalist,"  No.  XVI. 


THE   UNITED    STATES  15 

constitutionally  binding  on  members  of  the  union,  yet 
in  practice  they  are  mere  recommendations  which  the 
states  observe  or  disregard  at  their  option." 

This  was  written  in  1787,  after  six  years'  trial  of  the 
Articles,  and  it  states  briefly  but  comprehensively  the  es- 
sential defect  of  the  political  system  which  they  embodied. 
The  "  great  and  radical  vice "  which  Hamilton  thus 
pointed  out  in  a  negative  way  he  made  clearer.  "  The 
government  of  the  union,"  wrote  he,  "  like  that  of  each 
state,  must  be  able  to  address  itself  immediately  to  the 
hopes  and  fears  of  individuals ;  and  to  attract  to  its  sup- 
port those  passions  which  have  the  strongest  influence 
upon  the  human  heart.  It  must,  in  short,  possess  all  the 
means  and  have  a  right  to  resort  to  all  the  methods  of 
executing  the  powers  with  which  it  is  intrusted,  that  are 
possessed  and  exercised  by  the  governments  of  the  par- 
ticular states."  ^ 

Under  the  test  of  administration,  the  Articles  in  the 
short  period  of  five  years  proved  wholly  inadequate  to 
the  exigencies  of  the  union.  The  government  which  they 
established  did  not  possess  the  means,  or  have  the  right 
to  resort  to  all  the  methods  of  executing  the  powers  with 
which  it  was  intrusted,  that  were  possessed  and  exercised 
by  the  government  of  the  particular  states ;  it  was  de- 
pendent upon  the  states  for  the  execution  of  its  laws.  It 
could  not  appeal  to  the  individual  citizens  of  the  United 
States,  save  indirectly  through  the  state  legislatures.  As 
long  as  the  states  responded  promptly  and  willingly  to 
the  support  of  its  acts,  the  congress  of  the  Confederation 
was  a  directing,  if  not  a  governing  body;  but  by  1785 
there  was  evidence  on  every  hand  not  only  that  the  polit- 
ical system  at  the  head  of  which  the  congress  nominally 
stood  was  wholly  inadequate,  and  that  if  the  purposes  for 
which  the  Union  had  been  formed  were  to  be  realized,  the 
Articles  of  Confederation  must  be  amended. 

The  crisis  came  in  1786,  when  the  states  finally  refused 
to  grant  Congress  the  power  to  pass  a  tariflf  act.  This 
signified  that  the  trade  and  commerce  of  the  country  were 
to  be  regulated  by  thirteen  individual  states,  a  condition 

1  "The  Federalist,"  No.  XVI. 


i6       A   CONSTITUTIONAL   HISTORY   OF 

of  affairs  which  necessarily  must  involve  the  country  in 
industrial  ruin.  As  early  as  1780,  and  nearly  a  year  before 
the  ratification  of  the  Articles,  Hamilton  had  urged  the 
calling  of  a  federal  convention,  to  amend  them.  Six 
years  had  passed,  and  the  political  and  industrial  history 
of  the  country  had  fully  confirmed  the  fears  of  Hamilton, 
and  of  other  friends  and  supporters  of  the  Union,  that  the 
incurable  fault  of  the  Confederation  was  its  recognition 
of  the  sovereignty  of  each  state. 

Congress  itself,  after  1784,  was  convinced  that  consti- 
tutional reforms  were  important,  but  its  suggestions  re- 
ceived little  attention.  The  most  serious  evil  of  the 
times  was  the  repeated  practical  denial  of  the  obligation 
of  contracts,  as  exemplified  in  the  enormous  issue  of 
paper  money  by  Congress  and  by  the  states.  Repeated 
attempts  were  made,  as  in  Rhode  Island,  to  enforce  the 
circulation  of  state  paper,  at  par,  by  law.  The  effect  of 
this  wholesale  issue  of  fiat  money  was  the  prostration  of 
public  and  private  credit.  Scarcely  less  serious  was  an- 
other evil,  —  commercial  rivalry  among  the  states. 

In  1786  Maryland  and  Virginia  appointed  commis- 
sioners to  prepare  articles  of  agreement  respecting  the 
control  of  commerce  on  the  Potomac ;  but  other  states 
were  interested  in  the  great  subject  of  inter-state  com- 
merce, and  some  of  them  were  in  favor  of  giving  to 
Congress  the  exclusive  power  of  regulating  it.  The  Vir- 
ginia and  Maryland  commissioners  recognized  the  inter- 
ests of  Delaware  and  Pennsylvania  in  the  Potomac,  and 
prepared  a  letter  to  all  the  assemblies  urging  the  assem- 
bling of  a  trade  convention  to  which  every  state  should 
send  delegates.  To  this  suggestion  five  states  responded,^ 
by  sending  delegates  to  Annapolis,  Maryland,  to  confer 
together  on  the  subject  of  inter-state  commerce  and  the 
regulation  of  trade.  After  a  three  days'  session  they 
agreed  upon  a  report,  written  by  Alexander  Hamilton, 
which  was  sent  to  Congress  and  the  state  legislatures. 
The  report  was,  in  substance,  a  review  of  the  defects  of 
the  Articles,  and  concluded  with  the  suggestion  that  as 
the  subject  was  of  general   interest,   each   state   should 

1  Virginia,  New  York,  New  Jersey,  Pennsylvania,  and  Delaware. 


THE   UNITED    STATES  17 

appoint  delegates  to  a  federal  convention,  which  should 
consider  what  should  be  done  to  render  the  federal  consti- 
tution "  adequate  to  the  exigencies  of  the  Union."  Phil- 
adelphia was  named  as  the  place  of  meeting,  and  the 
14th  of  May,  1787,  as  the  time. 

To  this  suggestion  all  the  states,  except  Rhode  Island, 
responded  during  the  next  six  months,  by  the  appoint- 
ment of  delegates.  On  the  21st  of  February,  1787, 
Congress  gave  its  tardy  consent  to  the  call  for  the  con- 
vention. Its  decision  and  that  of  several  of  the  states 
was  hastened  by  an  insurrection  which  broke  out  in 
Massachusetts,  known  as  "  Shays's  rebellion,"  caused  by 
the  prostration  of  public  and  private  credit,  by  the  dis- 
turbance of  industry,  and  by  the  riotous  growth  of  loose 
notions  of  government,  engendered  by  ultra  revolutionary 
notions.  The  outbreak  was  recognized  at  the  time  as  an 
unmistakable  sign  of  the  critical  condition  of  public 
affairs.  The  insurrection  lasted  four  months.  Taken  in 
connection  with  the  low  state  of  public  credit,  the  depres- 
sion of  trade,  the  feebleness  of  the  federal  government, 
and  the  jealousy  prevailing  among  the  states,  this  "  com- 
motion among  the  eastern  people,"  as  Washington  called 
it,  placed  our  national  character  "  much  below  par,  and 
brought  our  politics  and  credit  to  the  brink  of  a  preci- 
pice." The  willingness  of  the  states  and  of  Congress  to 
consider  constitutional  reforms  was,  as  John  Adams  ex- 
pressed it,  the  result  of  grinding  necessity.  A  fed- 
eral convention  seemed  the  only  means  of  escape  from 
anarchy.^ 

1  For  a  detailed  account  of  the  condition  of  the  states  under  the 
Articles  of  Confederation,  of  the  failure  of  the  confederation,  and  of  the 
necessity  of  constitutional  reforms,  see  the  author's  "Constitutional  His- 
tory of  the  United  States,  1776-1895,"  vol.  i,  pp.  208-288. 


i8       A   CONSTITUTIONAL   HISTORY   OF 


CHAPTER   II 

FORMULATION   OF   THE  SUPREME  LAW 

During  the  fall  and  winter  of  1786-1787  the  legislatures 
of  the  states,  except  Rhode  Island,  elected  in  the  aggre- 
gate seventy-four  delegates  to  the  Philadelphia  convention, 
and  of  these  fifty-five  accepted  election.  On  Friday,  the 
25th  of  May,  1787,  the  business  of  the  convention  opened 
with  the  unanimous  choice  of  Washington  as  presiding 
officer.  The  sessions  continued  for  three  months  with 
few  interruptions.  The  delegates  met  with  closed  doors, 
and  under  the  rule  "  that  nothing  spoken  in  the  house  be 
printed,  or  otherwise  published,  or  communicated,  without 
leave."  They  composed  the  most  distinguished  body  of 
Americans  who  have  assembled  at  one  time  for  any 
purpose. 

The  Virginia  delegates  had  arrived  some  days  before 
the  actual  work  of  the  convention  began.  James  Madison, 
one  of  these  delegates,  had  thoroughly  acquainted  himself 
with  the  history  of  confederacies,  and  came  to  Philadel- 
phia with  a  carefully  prepared  outline  of  a  general  gov- 
ernment. This  outline,  known  as  the  Virginia  plan, 
consisted  of  fifteen  resolutions,  and  was  submitted  to  the 
convention  on  the  29th  of  May,  by  Edmund  Randolph, 
governor  of  Virginia,  and  one  of  the  delegates  from  that 
state. 

The  plan  called  for  a  radical  remodelling  of  the  Articles 
in  conformity  to  the  republican  basis  of  the  state  govern- 
ments. Congress  had  consisted  of  a  single  house;  the 
Virginia  plan  called  for  a  national  legislature  of  two 
branches:  the  lower  chosen  by  the  people,  the  upper  in- 
directly by  the  assemblies.  The  Confederation  made  no 
provision  for  a  chief  executive ;  the  Virginia  plan  pro- 
posed a  national  executive  to  be  chosen  by  the  national 


THE   UNITED    STATES  19 

legislature.  The  Articles  made  no  provision  for  federal 
courts ;  the  Virginia  plan  proposed  a  national  judiciary, 
consisting  of  one  superior  tribunal  and  of  inferior  tri- 
bunals. These  general  provisions  indicate  the  compre- 
hensive scope  of  the  plan ;  its  details  partook  of  a  like 
quality.  In  brief,  a  national  government  should  be  estab- 
lished consisting  of  a  supreme  legislative,  executive,  and 
judiciary. 

The  word  "national"  indicated  the  essential  character  of 
the  proposed  reform,  and  at  once  divided  the  convention 
into  two  parties,  —  the  state  party  and  the  national  party. 
The  state  party  feared  the  formation  of  a  consolidated 
government,  and  desired  only  to  amend  the  Articles  so  as 
to  secure  a  strictly  federal  government.  This  funda- 
mental difference  between  the  two  parties  occasioned  the 
long  debate  out  of  which  grew  the  Constitution  of  the 
United  States. 

A  government  organized  strictly  on  a  national  basis 
would  address  itself  primarily  to  individuals ;  therefore 
representation  in  both  houses  would  be  apportioned  ac- 
cording to  population,  and  the  executive  would  be  chosen 
by  popular  vote.  An  elective  judiciary  was  at  this  time 
unknown.  In  each  state,  as  in  England,  at  this  time,  the 
judges  were  appointed  by  the  executive,  with  the  consent 
of  the  upper  house.^  In  a  strictly  national  government, 
authority,  legislative,  executive,  and  judicial  would  be 
supreme,  and  the  authority  of  the  several  states  would  be 
in  every  respect  subordinate. 

If  the  government  was  organized  strictly  on  a  federal 
basis,  the  states,  as  independent  and  sovereign  bodies, 
would  lie  at  its  foundation.  It  would  rest  upon  them  as 
distinct  corporations,  and  would  have  no  authority  over 
individuals.  The  federal  legislature  might  consist  of  a 
single  branch  in  which,  as  under  the  articles,  each  state 
might  have  one  vote.  Representation,  therefore,  would  be 
equal  but  not  proportional.  The  executive  in  such  a  gov- 
ernment would  be  chosen  either  by  the  state  legislatures, 
or  by  the  representatives  of  these  legislatures  in  Congress. 
The  federal  judiciary  might  consist  of  the  state  tribunals. 

1  Excepting  in  Pennsylvania,  Georgia,  and  Vermont  the  legislature 
consisted  of  two  branches. 


20       A   CONSTITUTIONAL    HISTORY   OF 

If  it  consisted  of  distinct  tribunals,  their  jurisdiction  would 
not  extend  over  that  of  the  state  courts.  In  a  strictly 
federal  government  authority  would  be  limited,  would  be 
expressly  delegated,  and  would  never  be  superior  to  that 
of  the  respective  states. 

On  the  morning  of  May  29th,  Randolph,  in  an  effective 
speech,  reviewed  the  Articles  of  Confederation,  pointed  out 
their  defects,  and  urged  his  colleagues  to  remedy  them  by 
the  organization  of  a  national  government.  To  this  end 
he  submitted  the  fifteen  resolutions  which  comprised  the 
Virginia  plan. 

There  should  be  a  national  executive,  a  national  legis- 
lature, a  national  judiciary,  and  a  council  of  revision. 
The  national  legislature  should  elect  the  executive,  but  he 
should  be  ineligible  for  a  second  term.  The  legislature 
should  consist  of  two  houses,  and  should  have  power  to 
veto  all  acts  of  assembly  in  conflict  with  the  constitution, 
and  also  should  have  power  to  coerce  refractory  states. 
The  lower  house  should  be  chosen  by  the  people,  but  the 
upper  house  should  be  chosen  by  the  lower  house  from 
men  nominated  by  the  state  legislatures.  Representation 
in  both  houses  should  be  proportional  to  population,  or 
to  the  contributions  made  by  the  several  states  to  the 
general  expense.  The  national  legislature  should  elect 
a  national  judiciary.  The  council  of  revision  should  con- 
sist of  the  executive  and  the  judges,  and  its  duty  should 
be  to  revise  the  laws  before  they  went  into  effect.  New 
states  should  be  admitted  into  the  Union ;  the  Constitu- 
tion should  be  subject  to  amendment,  and  each  state 
should  be  guaranteed  a  republican  form  of  government. 

After  his  running  commentary  on  the  resolutions,  Ran- 
dolph handed  them  over  to  the  convention,  which  at  once 
went  into  committee  of  the  whole  on  the  state  of  the 
Union.  General  Charles  Pinckney,  of  South  Carolina, 
then  submitted  a  plan  of  which  little  is  known. ^  It  also 
was  given  over  to  the  committee.    For  two  weeks  the  Vir- 

1  For  a  copy  of  Pinckney's  draft,  together  with  some  critical  remarks 
by  Prof.  J.  Franklin  Jameson,  see  the  Avierican  Historical  Review  for 
April,  1903.  Madison's  well  known  estimate  may  be  found  in  his 
"Notes"  on  the  convention.  See  also  Profes.sor  Jameson's  "Studies  in 
the  History  of  the  F'ederal  Convention  of  1787,"  and  "  Report  of  the 
American  Historical  Association,  1902,"  vol.  i,  pp.  89-167. 


THE    UNITED    STATES  21 

ginia  plan  was  debated,  article  by  article.  Many  amend- 
ments were  suggested  and  a  few  were  adopted.  All  the 
delegates  agreed  that  the  old  Articles  were  inadequate, 
but  they  differed  widely  as  to  the  best  manner  of  correct- 
ing their  defects.  There  was  a  prevailing  sentiment,  how- 
ever, that  the  three-fold  division  of  government  familiar 
to  the  states  should  prevail  in  the  national  plan ;  that  the 
national  legislature  should  consist  of  two  houses,  like 
most  of  the  state  legislatures,  and  that  the  lower  house 
should  be  chosen  by  the  people.  But  as  soon  as  these 
broad  outlines  of  the  new  plan  were  taken  up  in  detail, 
almost  hopeless  differences  of  opinion  at  once  appeared. 

The  majority  were  jealous  for  the  preservation  of  all 
the  powers  of  the  states,  and  formed  what  may  be  called 
the  state  party.  They  favored  a  plural  executive ;  and 
some  wished  an  executive  committee  of  three  persons, 
each  from  a  different  section  of  the  country.  The  colonial 
executives  had  been  aided  by  a  council,  and  the  state  party 
now  demanded  a  council  of  revision.  Some  favored  the 
election  of  the  executive  directly  by  the  people;  others, 
an  election  by  the  state  legislatures;  others,  an  elec- 
tion by  both  branches  of  the  national  legislature,  and 
others  an  election  by  the  governors.  Out  of  this  confu- 
sion came  the  decision,  on  the  4th  of  June,  that  the  election 
of  the  executive  should  be  determined  by  the  national 
legislature,  but  that  he  should  not  be  re-eligible  after  his 
term  of  six  years. 

Up  to  the  time  of  this  decision  the  discussion  appears 
to  have  been  friendly;  but  the  apparently  irreconcilable 
opinions  of  the  members  now  led  them  into  hostile  speech, 
and  it  seemed  to  some  that  the  convention  must  adjourn, 
having  done  nothing.  Amidst  all  the  differences  of  the 
hour,  it  was  evident  that  there  were  two  principal  parties 
in  the  convention :  one,  the  state  party,  demanding  a 
strictly  federal  government ;  the  other,  the  national  party 
which  would,  if  possible,  set  up  a  strongly  centralized 
government.  Yet  even  thus  early  in  the  discussion  the 
distinctive  character  of  the  North  and  the  South  appeared. 
The  northern  states  were  commercial ;  the  southern,  agri- 
cultural. Another  difficulty  which  intensified  differences 
v/as  the  division  of  the  states  into  large  and  small;    the 


22       A    CONSTITUTIONAL    HISTORY    OF 

three  largest  in  wealth  and  population  being  Virginia, 
Pennsylvania,  and  Massachusetts. 

While  the  provision  in  the  Virginia  plan  on  representa- 
tion was  under  discussion,  it  became  evident  that  slavery- 
would  force  yet  another  division  in  the  convention.  The 
pro-slavery  party  demanded  the  equal  representation  of 
slaves ;  their  opponents  demanded  the  exclusion  of  slaves 
from  representation.  Out  of  these  differences  of  opinion 
grew  the  three  great  compromises  of  the  Constitution: 
the  first  on  representation,  —  the  compromise  between  the 
large  and  the  small  states ;  the  second  on  slavery,  — 
the  compromise  on  the  representation  of  slaves,  caused 
by  the  contest  between  the  free  states  and  the  slave  states ; 
and  the  third,  the  compromise  on  the  regulation  of  com- 
merce and  the  slave  trade,  caused  by  the  contest  be- 
tween the  commercial  and  the  agricultural  states. 

The  great  states  earnestly  supported  the  Virginia  plan ; 
the  small  states,  with  equal  vehemence,  demanded  amend- 
ment of  the  old  Articles.  The  issue  was  clearly  drawn  by 
the  9th  of  June,  when  at  the  request  of  William  Paterson, 
of  New  Jersey,  who  spoke  for  the  small  states,  the  ques- 
tion of  proportional  representation  was  taken  up.  He  and 
his  party  believed  that  the  convention  in  presuming  to 
make  a  new  constitution  was  transcending  its  powers. 
Its  duty  was  to  amend  the  old  Articles.  These  recognized 
the  sovereignty  of  the  states  by  allowing  each  an  equal 
vote  in  Congress.  Proportional  representation,  whether 
as  to  wealth  or  population,  he  said,  was  unjust  to  the 
smaller  states.  Georgia  would  have  but  one  representa- 
tive, Virginia  would  have  sixteen  ;  the  risk  was  too  great ; 
and  he  boldly  declared  that  New  Jersey  would  never  join 
in  such  a  plan. 

In  vain  did  the  spokesmen  of  the  national  party,  and 
notably  Wilson  and  Madison,  defend  proportional  repre- 
sentation for  both  Houses.  They  could  not  persuade  the 
convention  that  a  state  could  preserve  its  sovereignty,  and 
at  the  same  time  be  a  member  of  such  a  national  govern- 
ment as  they  proposed.  And  they  could  not  persuade  the 
state  party  that  it  was  the  people  and  not  the  states  that 
were  to  be  represented  in  the  new  government.  But  the 
delegates  from  the  large  states  were  in  the  majority,  and 


THE   UNITED    STATES  23 

decided  that  representation  in  the  lower  House  should  be 
according  to  some  equitable  ratio,  and  this,  it  was  soon 
decided,  should  be  the  ratio  adopted  by  Congress  in 
April,  1783,  for  determining  the  quotas  of  the  several 
states;  that  is,  according  to  the  whole  number  of  free 
white  persons,  and  three-fifths  of  all  other  persons,  ex- 
cepting Indians,  not  taxed.  The  small  states,  thus  de- 
feated in  their  struggle  to  secure  equal  representation  in 
the  lower  House,  now  strove  vigorously  to  secure  it  in 
the  upper ;  but  they  were  out-voted  by  the  larger  states, 
and  representation  here,  it  was  decided,  should  also  be 
according  to  population.  There  was  less  difference  of 
opinion  respecting  the  remaining  clauses  of  the  Virginia 
plan,  and  by  the  13th  of  June  all  its  resolutions  had  been 
discussed,  and  the  convention  was  ready  to  hear  the  final 
report  of  the  committee  of  the  whole. 

But  the  smaller  states  were  not  merely  dissatisfied ; 
they  were  seriously  thinking  of  retiring  from  the  con- 
vention. Their  delegates  now  met  and  outlined  a  plan 
which  they  placed  in  the  hands  of  Paterson  to  present  to 
the  convention.^  Known  as  the  New  Jersey  plan,  it 
was  federal  in  character.  Congress  should  consist,  as 
formerly,  of  one  branch,  but  should  have  power  to  regu- 
late trade  and  to  levy  taxes.  The  executive  should  consist 
of  several  persons,  each  chosen  for  one  term  only,  and 
removable  by  Congress  whenever  a  majority  of  the  gov- 
ernors should  make  the  demand.  The  plan  made  a 
provision  for  a  supreme  court,  and  for  a  system  of  requi- 
sitions on  the  states  similar  to  that  in  the  articles  of 
confederation.  Paterson  defended  the  plan  as  coming 
within  the  powers  of  the  convention,  and  as  likely  to 
prove  popular  because  similar  to  that  of  the  articles. 
Either  the  convention  must  restrict  itself  to  amending 
the  articles,  he  said,  or  the  delegates  must  go  home  and 
receive  authority  to  substitute  a  new  constitution  for 
them. 

The  small  states  had  now  taken  a  stand  from  which 
they  plainly  intimated  they  would  not  recede.    The  large 

1  See  "  Papers  of  William  Paterson  on  the  Federal  Convention,  1787," 
American  Historical  Reirirw,  January,  1904. 


24       A    CONSTITUTIONAL   HISTORY   OF 

states,  which  had  controlled  the  convention  thus  far,  were 
not  dismayed,  but  proceeded  to  attack  the  New  Jersey 
plan.  James  Wilson,  of  Pennsylvania,  made  a  close  com- 
parison between  the  Virginia  and  the  New  Jersey  plans. 
By  the  Virginia  plan,  said  he,  the  basis  of  the  govern- 
ment would  be  the  people ;  but  by  the  New  Jersey  plan  the 
basis  would  be  the  states.  By  the  Virginia  plan  the  rule 
would  be  the  rule  of  the  majority,  but  by  the  New  Jersey 
plan  it  would  be  of  the  minority.  The  country  would 
have  a  single  executive  by  the  Virginia  plan,  but,  by  the 
New  Jersey  plan,  several  executives.  By  the  Virginia 
plan  the  new  government  would  consist  of  the  three 
branches  familiar  to  the  people  in  their  state  governments  ; 
by  the  New  Jersey  plan  there  would  be  but  one  branch. 
By  the  Virginia  plan  the  government  would  have  the 
power  to  annul  acts  of  the  assemblies ;  by  the  New  Jersey 
plan  it  would  be  authorized  to  coerce  the  states. 

James  Madison  followed  Wilson  in  a  powerful  speech, 
in  which  he  pointed  out  that  the  New  Jersey  plan  did  not 
differ  essentially  from  the  old  Articles  of  Confederation ; 
therefore,  the  old  evils  would  continue,  and  the  people 
would  be  no  better  off  than  before. 

Wilson  and  Madison  were  followed  by  Alexander 
Hamilton,  who,  in  a  remarkable  speech,  criticised  both 
plans  as  inadequate  to  the  wants  of  the  country,  and  then 
he  outlined  a  government  on  a  strictly  national  basis :  a 
supreme  legislative  consisting  of  two  Houses ;  members 
of  the  lower  House  chosen  by  the  people  for  three  years, 
and  members  of  the  upper  House  chosen  for  good  behavior 
by  electors  elected  by  the  people.  The  executive,  also 
chosen  for  good  behavior,  should  be  elected  by  special 
electors ;  should  have  authority  to  veto  all  laws ;  to  make 
treaties  with  the  co-operation  of  the  Senate ;  to  appoint 
the  heads  of  departments,  and  to  carry  on  war  whenever 
declared.  The  national  judiciary  should  be  supreme  in 
all  matters  of  general  concern  which  came  before  it. 
All  acts  of  state  legislatures  violating  the  constitution 
and  the  laws  of  the  United  States  should  be  null  and 
void.  The  governors  of  the  states  should  be  appointed 
by  the  national  government.  Hamilton  did  not  submit 
a  detailed  plan  of  government;   he  merely  sketched  what 


THE   UNITED    STATES  25 

he  considered  the  scope  and  general  organization  of  a 
national  system.^ 

The  question  now  before  the  convention  was  which 
plan  to  adopt,  —  the  Virginia  or  the  New  Jersey.  The 
large  states,  still  controlling  the  convention,  were  intent 
on  securing  a  strong  national  government,  and  the  com- 
mittee of  the  whole  reported  the  Virginia  plan.  For  a 
few  days  the  business  ran  on  smoothly  and  minor  changes 
were  made  in  the  plan  so  as  to  conciliate  the  small  states, 
and  particularly  by  omitting  the  word  "  national,"  which 
occurred  twenty-six  times  in  the  amended  Virginia  reso- 
lutions. It  was  dropped  for  the  phrase,  "  government 
of  the  United  States,"  or  its  equivalent.  During  the 
greater  part  of  June,  the  discussion  was  of  the  organiza- 
tion of  the  legislature,  whether  of  one  or  two  branches ;  of 
the  composition  of  the  executive,  whether  of  one  person 
or  more ;  and  of  the  qualifications  and  terms  of  members 
of  Congress.  But  there  was  one  question  which  seemed 
beyond  power  of  settlement :  the  basis  of  representation 
in  the  national  legislature.  Should  it  be  proportional 
as  the  large  states  now  demanded,  or  one  of  state  equahty, 
as  in  the  Articles  of  Confederation?  On  this  issue  the 
debate  became  angry. 

The  state  party  elaborated  the  doctrine  of  state  sover- 
eignty. If  proportional  representation  was  to  prevail,  the 
sovereignty  of  the  small  states,  they  said,  would  be  en- 
dangered. In  vain  did  the  national  party  attempt  to  prove 
these  fears  groundless.  In  vain  did  they  argue  that 
there  was  less  danger  of  combination  between  the  great 
than  between  the  small  states.  What  had  the  great  states 
in  common,  they  inquired,  and  what  evidence  existed  of 
the  possibility  of  combination  among  them? 

Happily,  just  at  this  time,  there  appeared  a  third  party, 
led  by  Roger  Sherman  of  Connecticut,  who  detected  the 
opportunity  for  a  compromise.  Between  the  national 
party  and  the  state  party  he  declared  there  was  a  middle 
ground ;  the  states  should  not  be  ignored  in  the  organ- 
ization of  the  new  government ;    they  should  compose 

1  For  the  draft  of  Hamilton's  plan,  see  "  Report  of  the  American  His- 
torical Association,  1902,"  vol.  i,  pp.  143-150. 


26       A    CONSTITUTIONAL   HISTORY    OF 

an  essential  part  of  its  basis.  The  new  government  must 
consider  both  states  and  individuals ;  therefore,  both  the 
states  as  corporations  and  the  people  as  individuals 
should  be  represented :  the  one  in  one  branch  of  Con- 
gress, the  other  in  the  other  branch.  But  Sherman's 
proposition  did  not  please  the  small  states,  and  they  would 
have  none  of  it.  The  great  states,  whose  delegates  were 
now  becoming  a  little  impatient  at  the  stubbornness  of 
Paterson  and  his  supporters,  would  not  modify  their 
decision,  and  it  was  settled  that  the  representation  in 
the  lower  House  of  the  national  legislature  should  be 
proportional  to  population.  This  also  pleased  Sherman 
and  his  party  of  compromisers. 

It  now  remained  for  them  to  secure  equal  representa- 
tion of  the  states  in  the  upper  house.  Here  they  antag- 
onized the  supporters  of  the  Virginia  plan,  some  of  whom 
lost  their  tempers  at  thought  of  the  demand.  A  vote 
was  taken :  it  stood  five  to  five,  —  a  tie.  The  disrup- 
tion of  the  convention  seemed  imminent.  At  this  moment 
Charles  Cotesworth  Pinckney,  of  South  Carolina,  moved 
that  the  question  of  representation  be  handed  over  to  a 
grand  committee  and  that  the  convention  should  adjourn 
for  three  days.  A  grand  committee  of  eleven  was 
elected  and  the  crisis  passed. 

But  the  grand  committee  was  as  divided  over  the 
question  as  the  convention  had  been,  and  rejected  the 
proposed  compromise.  There  seemed  no  prospect  of  con- 
ciliation or  agreement.  Members  of  the  committee,  who 
were  of  the  state  party,  re-affirmed  their  fears  and  de- 
clared that  they  would  never  confederate  on  the  plan 
suggested  by  Sherman.  Dr.  Franklin,  who  was  a  mem- 
ber of  the  committee,  at  last  secured  harmony  and  per- 
suaded his  colleagues  to  unite  in  a  report.  It  was 
understood,  however,  that  the  report  was  not  binding 
upon  any  member  of  the  committee,  and  therefore,  he 
might  support  or  attack  it  as  he  chose  on  the  floor  of 
the  convention.  Franklin  went  further  than  Sherman, 
as  the  report  shows.  In  the  lower  House,  each  state 
should  have  one  representative  for  every  forty  thou- 
sand inhabitants,  and  in  the  upper  House  an  equal  vote. 
To  win  the  great  states  it  was  agreed  that  the  lower 


THE   UNITED    STATES  zy 

House  should  have  the  exclusive  right  to  originate  money 
bills,  though  these  might  be  amended  in  the  upper  House. 
For  two  weeks  the  report  was  discussed.  At  last  it  was 
adopted,  and  thus  the  great  compromise  on  representation 
was   made. 

It  was  difficult,  but  less  difficult,  to  agree  on  the  details 
of  representation.  Much  was  said  of  the  size  of  each 
House.  There  was  fear  that  new  states  in  the  West 
might  soon  outvote  old  states  in  the  East,  if  the  basis 
of  apportionment  was  too  small.  But  Madison  and  a 
few  other  broad-minded  members  successfully  urged  a 
generous  provision  for  the  future,  and  warned  the  con- 
vention against  any  discrimination  between  the  East  and 
the  West.  It  was  necessary,  however,  to  establish  some 
rule  of  apportionment  and  to  this  end  Randolph  suggested 
a  census.  The  idea  was  favorably  received,  but  it  was 
soon  discovered  that  it  involved  difficulties.  How  should 
the  slaves,  most  of  whom  were  found  south  of  Mason 
and  Dixon's  line,  be  computed  ?  Should  they  be  counted 
as  persons  or  as  property  ?  The  question  divided  the  con- 
vention. 

The  southern  delegates  and  some  of  the  northern  de- 
manded that  slaves  should  rank  as  free  persons.  The 
opponents  of  slavery  answered  that  slaves  were  property 
and  for  that  reason  the  oxen  and  cattle  of  the  North 
should  be  included  in  the  census.  At  this  moment  Hugh 
Williamson,  of  North  Carolina,  came  forward  with  a 
compromise  :  the  enumeration  in  the  census  should  be 
of  all  free  persons  and  three-fifths  of  all  others ;  but  his 
compromise  provoked  a  heated  discussion.  Massachu- 
setts, New  Jersey  and  Pennsylvania  demanded  the  ex- 
clusion of  slaves ;  Georgia,  South  Carolina,  and  Delaware 
insisted  upon  their  representation  equally  with  white  men. 
North  Carolina,  Virginia,  and  Maryland,  though  slave- 
holding  states,  favored  the  northern  idea. 

In  the  debate  which  followed,  the  importance  of 
slavery  to  the  South  was  fully  set  forth  by  its  leading 
delegates.  The  opponents  of  slave  representation  ob- 
jected to  it  because  of  its  encouragement  to  the  slave 
trade  and  here  the  matter  was  left,  —  for  by  a  unanimous 
vote  Randolph's  motion  for  a  census  was  rejected. 


28       A    CONSTITUTIONAL   HISTORY   OF 

At  this  point  Gouverneur  Morris,  of  Pennsylvania, 
proposed  that  taxation  should  be  in  proportion  to  repre- 
sentation, which  was  agreed  to  with  the  understanding 
that  direct  taxation  was  understood ;  but  if  property  was 
to  be  taxed,  and  slaves  were  property,  then  the  South 
would  bear  a  heavy  burden ;  and  several  of  its  delegates 
at  once  declared  that  the  South  would  never  join  in  the 
union  unless  it  was  granted  a  representation  of  three- 
fifths  of  its  slaves,  —  from  which  position  the  southern 
delegates  could  not  be  driven.  While  it  was  possible  that 
their  request  might  be  voted  down,  the  effect  was  not  in 
doubt ;  the  slave-holding  states  would  reject  the  plan 
when  submitted  to  them,  therefore  the  demands  of  the 
South  must  be  granted  or  a  compromise  of  some  kind 
be  arranged. 

Rhode  Island  had  not  sent  delegates.  New  York,  in 
the  persons  of  Yates  and  Lansing,  had  retired  from  the 
convention  when  Sherman's  compromise  on  representa- 
tion was  carried ;  and  of  the  ten  states  remaining  six 
were  southern.  To  win  the  support  of  the  South  to  the 
new  plan,  the  propositions  for  a  census  and  representa- 
tion of  three-fifths  of  the  slaves  were  renewed,  and 
through  the  skilful  management  of  Gouverneur  Morris 
a  compromise  was  agreed  on :  that  representation  should 
be  according  to  direct  taxation,  and  that  both  direct  taxes 
and  representation  should  be  apportioned  according  to 
population,  and  by  the  term  "population"  should  be  under- 
stood all  free  white  persons  and  three-fifths  of  the  slaves. 
The  vote  of  North  Carolina  and  Georgia  carried  the  prop- 
ositions, and  the  compromise  on  slave  representation  was 
made. 

The  two  compromises  were  reported  to  the  conven- 
tion by  the  committee  on  the  i6th  of  July ;  the  decision 
about  to  be  made  would  determine  the  fate  of  the  new 
plan.  The  managers  sagaciously  united  the  two  compro- 
mises so  that  the  vote  must  be  on  the  whole  report.  This 
strengthened  its  chances  of  success,  for  the  small  states  de- 
sired the  equal  representation  which  they  would  secure  in 
the  upper  house ;  and  the  slave  states  desired  the  slave  rep- 
resentation which  they  would  secure  by  the  second  part 
of  the  report.     As  the  vote  proceeded,  it  was  discovered 


THE   UNITED    STATES  29 

that  the  fate  of  the  two  compromises  would  depc^  d  upon 
the  vote  of  North  CaroHna.  It  voted  yea,  and  the  com- 
promises were  carried.  The  victory  did  not,  however, 
restore  harmony  to  the  convention  ;  scarcely  a  member 
was  satisfied.  There  were  louder  hints  than  before  of 
immediate  adjournment  and  another  federal  convention, 
but  all  ended  in  talk. 

Ten  days  were  then  spent  in  agreeing  on  the  details 
of  the  distribution  of  power  between  the  general  govern- 
ment and  the  states.  Then,  on  the  26th  of  July,  the 
Virginia  plan,  which  had  expanded  into  twenty-three 
provisions,  the  New  Jersey  plan,  and  Pinckney's  plan 
were  handed  over  to  a  grand  committee  which  was  in- 
structed to  report  a  constitution.  An  adjournment  was 
then  taken  till  the  6th  of  August. 

It  was  during  these  eleven  days  that  the  Constitution 
or  plan  of  government  of  the  United  States  was  given  its 
first  form.  When  the  convention  re-assembled,  each  mem- 
ber was  supplied  with  a  printed  draft  of  a  constitution 
of  which  a  few  copies  are  in  existence.  The  twenty-three 
resolutions  submitted  by  the  committee  show  at  a  glance 
the  great  changes  which  its  members  had  made  in  the  plan. 
The  executive  should  serve  one  term  of  seven  years,  and 
could  never  again  be  a  candidate  for  the  office.  His  title 
should  be  His"  Excellency.  He  should  be  impeachable  by 
the  House  of  Representatives,  but  should  be  tried  before 
the  supreme  court.  The  states  should  pay  the  members 
of  the  national  legislature.  A  senator  could  hold  no  office 
under  the  United  States  till  one  year  after  his  retirement 
from  the  Senate.  The  committee  also  reported  a  cumber- 
some method  of  settling  disputes  between  states. 

The  delegates  now  settled  down  to  a  careful  revision  of 
the  committee's  report.  Matters  went  on  smoothly  until 
the  article  was  reached  forbidding  Congress  to  levy  an 
export  tax,  or  to  impose  a  tax  on  imported  slaves,  or  in 
any  way  to  hinder  the  slave  trade;  or  to  pass  a  tariff 
law  except  with  the  consent  of  two-thirds  of  the  members 
present  in  each  House.  Not  to  tax  exports  was  a  novel 
idea,  and  was  objected  to  by  some  of  the  southern  mem- 
bers, who  feared  that  if  this  powder  was  given  to  the  gen- 
eral government,  it  would  be  exercised  to  tax  the  tobacco 


30       A    CONSTITUTIONAL   HISTORY   OF 

and  oththt^igricultural  products  of  the  South.  The  north- 
ern states  consented.  Until  this  time  every  government 
on  earth  had  taxed  exports.  The  sound  doctrines  of  Adam 
Smith  and  his  school  were  now  for  the  first  time  having 
their  effect  in  organic  legislation,  and  the  ancient  practice 
was  for  the  first  time  discarded. 

South  Carolina  and  Georgia  were  the  slave  importing 
states,  and  to  please  them  the  provision  protecting  the 
slave  trade  had  been  inserted.  They  insisted  that  their 
prosperity  depended  upon  the  abundance  of  slave  labor 
which,  according  to  their  account,  implied  the  free  im- 
portation of  slaves.  The  idea,  however,  was  repugnant 
to  many  delegates,  and  Luther  Martin,  of  Maryland,  pro- 
posed that  the  importation  of  slaves  should  be  taxed. 
This  brought  the  matter  to  an  issue,  and  precipitated  a 
long  and  somewhat  bitter  discussion.  Free  states  and 
slave  states  were  contrasted  in  wealth  and  progress,  and 
religion  and  morality  as  touching  slavery  were  discussed. 
There  seemed  no  way  of  settling  the  matter  till  Gouver- 
neur  Morris  suggested  that  the  questions  of  taxing  im- 
ported slaves,  of  taxing  exports,  and  of  passing  tariff 
acts,  which  at  this  time  were  called  navigation  acts,  should 
be  sent  to  a  special  committee,  and  his  motion  prevailed. 
The  North  was  anxious  to  secure  the  provision  for  a 
tariff  act  and  the  South  for  the  right  to  import  slaves. 
A  compromise  was  agreed  on.  The  importation  of  slaves 
was  permitted  until  1808;  Congress  was  empowered  to 
pass  a  tariff  act,  but  exports  should  not  be  taxed.  This 
was  the  third  great  compromise  of  the  plan  of  govern- 
ment for  the  United  States. 

The  draft  by  the  grand  committee,  now  much  modified 
by  amendment,  and  all  clauses,  action  on  which  had  been 
postponed,  were,  after  a  week's  further  debate,  handed 
over  to  a  committee  of  eleven,  which  reported  from  day 
to  day  till  the  8th  of  September.  All  the  articles,  as  they 
had  been  agreed  upon,  —  and  they  were  a  series  of  com- 
promises, —  were  then  given  over  to  a  committee  on 
arrangement  and  style,  which  four  days  later  reported  a 
draft  of  a  constitution.     This  was  engrossed. 

At  the  last  moment,  the  basis  of  apportionment  was 
changed  in  order  to  strengthen  the  Constitution  with  the 


THE   UNITED    STATES  31 

smaller  states,  but  many  of  the  members  pointed  out  ob- 
jectionable features  in  the  plan,  and  intimated  that  they 
could  not  approve  of  it.  It  seemed  that  the  Constitution 
might  be  left  a  mere  piece  of  parchment  on  the  secretary's 
desk. 

To  win  votes  and  secure  its  adoption,  Franklin  now 
wrote  a  conciliatory  speech,  which,  because  of  infirmity 
he  was  unable  to  read  to  the  convention,  was  read  by 
James  Wilson,  and  undoubtedly  effected  its  purpose. 
Gouverneur  Morris  had  handed  in  a  form  of  approval 
which  he  hoped  would  satisfy  the  discontented :  "  Done  in 
convention  by  the  unanimous  consent  of  the  states  pres- 
ent." This  Franklin  'incorporated  in  his  speech.  But  his 
conciliatory  speech  had  no  effect  on  Elbridge  Gerry, 
Luther  Martin,  George  Mason,  and  Edmund  Randolph, 
who  refused  to  sign.  Washington  was  the  first  to  affix 
his  name ;  then  the  delegates,  in  the  geographical  order  of 
their  states,  beginning  with  New  Hampshire,  added  theirs. 
Alexander  Hamilton  alone  signed  for  New  York.^ 

The  great  matter  so  long  in  doubt  was  now  settled,  and 
Dr.  Franklin,  whose  anxiety  for  the  success  of  the  new 
plan  had  not  been  concealed,  looking  toward  the  presi- 
dent's chair,  pointed  out  the  figure  of  the  sun  cut  on  its 
back,  and  observed  to  a  member  near  him,  that  painters 
had  found  it  difficult  to  distinguish  a  rising  from  a  setting 
sun.  "  I  have  often  and  often  in  the  course  of  the  session 
and  the  solicitude  of  my  hopes  and  fears  as  to  its  issue, 
looked  at  that  behind  the  president  without  being  able 
to  tell  whether  it  was  rising  or  setting,  but  now  at  length 
I  know  that  it  is  a  rising  and  not  a  setting  sun."  On  the 
evening  of  the  17th  of  September,  the  delegates  again 
assembled  but  only  for  social  intercourse.  Their  work 
was  done. 

The  Constitution  which  they  had  framed  was  composite, 
as  was  the  plan  of  national  government  which  it  outlines. 

1  Of  the  fifty-five  delegates  who  attended  the  convention,  thirty-nine 
signed  the  constitution.  Four  refused  to  sign,  —  Gerry,  L.  Martin, 
Mason,  and  Randolph.  Twelve  were  absent,  of  whom  seven  are  known 
to  have  approved  it,  and  of  the  twelve  only  three  are  known  to  have 
opposed  it.  See  Jameson's  article  in  "  Report  of  the  American  Histori- 
cal Association,  1902,"  vol.  i,  pp.  157-160. 


32       A    CONSTITUTIONAL   HISTORY    OF 

It  was  written  in  its  final  form  by  Gouverneur  Morris/ 
and  was  arranged  under  his  hand,  but  not  in  the  order  in 
which  its  parts  had  been  completed  by  the  convention. 
Of  a  preamble  nothing  had  been  said  during  the  debates, 
and  this  brief  introduction  to  the  instrument  was  added 
probably  by  Morris.  The  phrases  of  the  preamble  can  be 
traced  back  for  two  hundred  and  seventy  years  through 
American  charters  and  plans  of  union ;  but  its  immediate 
source  was  the  plan  of  government  submitted  by  Dr. 
Franklin  in  1775.  Its  phrases  seem  to  have  been  selected 
by  Morris  from  the  wealth  of  material  at  hand. 

The  Constitution  existed  in  outline  in  the  Virginia  plan 
submitted  by  Edmund  Randolph,  but  it  also  was  outlined 
in  part  in  the  New  Jersey  plan  and  in  the  sketch  read  by 
Alexander  Hamilton.  The  investiture  of  power  in  three 
departments  closely  followed  the  models  set  in  the  state 
constitutions,  which  instruments,  indeed,  were  the  imme- 
diate source  of  most  of  its  derivative  provisions.  The 
titles  "  senate  "  and  "  house  of  representatives  "  were  in 
use  in  five  states,-  and  the  clauses  defining  legislative  pro- 
cedure were  transcripts  from  state  constitutions.  The 
qualifications  for  the  age  and  residence  of  senators  and 
members  of  the  House  were  common  to  organic  laws  of 
the  states.  New  York  and  South  Carolina  set  a  precedent 
for  a  census.  The  division  of  senators  into  three  classes 
had  a  precedent  in  South  Carolina,  and  annual  legislative 
sessions  were  common  to  all  the  states.  Until  the  Articles 
of  Confederation,  no  national  constitution  had  provided 
for  the  publication  of  the  journal  of  the  legislature.  The 
exclusive  right  of  the  lower  house  to  originate  money 
bills,  following  the  precedent  of  Parliament,  prevailed  in 
all  the  states.  The  power  of  impeachment  and  the  pro- 
vision for  the  trial  of  the  impeached  were  similar  to  state 
provisions  on  the  subject.  The  clauses  on  the  powers  of 
Congress  were  elaborated  from  the  like  clauses  in  the 
Articles  of  Confederation.     From  the  state  constitutions 


1  The  original  is  preserved  in  the  library  of  the  Department  of  State 
in  Washington.  It  has  no  title ;  the  articles  and  sections  but  not  the 
clauses  are  numl)ered. 

2  New  Hampshire,  Massachusetts,  New  York,  Virginia,  North  Caro- 
lina, and  South  Carolina. 


THE   UNITED    STATES  33 

came  the  clause  on  the  habeas  corpus  and  on  ex  post  facto 
laws.  The  limitations  of  the  powers  of  the  states  had  a 
partial  precedent  in  the  Articles  of  Confederation,  but  most 
of  them  had  been  worked  out  by  hard  experience  in 
administration. 

South  Carolina  and  Massachusetts  gave  their  execu- 
tives the  veto  power,  but  the  remaining  functions  of  the 
executive  were  more  or  less  carefully  defined  in  all  the 
state  constitutions.  The  closest  analogy  for  the  provi- 
sions on  the  national  executive  was  the  provisions  on  the 
executive  in  the  constitution  of  Massachusetts.  The  title 
"  president "  had  been  used  in  the  Virginia  charters,  and 
occasionally  in  the  charters  of  other  colonies,  and  was 
used  as  the  title  of  the  executive  in  five  states.^  Even 
the  method  of  choosing  the  president  by  special  electors 
was  analogous  to  that  of  choosing  state  senators  in  Mary- 
land, but  the  precedent  was  not  a  close  one.  The  powers 
of  the  executive  resembled  those  which  had  been  granted 
in  the  state  instruments,  and  which  had  been  proposed  in 
early  plans  of  colonial  union.  Georgia  and  New  York 
provided  for  a  message  from  the  governor,  and  in  most 
of  the  states  that  officer  had  authority  to  call  the  legisla- 
ture in  extra  session.  Strictly  speaking,  no  one  state  fur- 
nished a  prototype  for  the  president.  The  presidency  in 
so  far  as  defined  by  the  Constitution  was  a  composite 
office,  representing  an  aggregate  of  powers  and  functions. 
The  office  of  vice-president  was  not  thought  of  until 
toward  the  close  of  the  convention,  and  then  as  a  com- 
promise measure  to  prevent  a  hiatus  in  the  government; 
but  a  similar  officer  could  be  found  in  New  Jersey,  Penn- 
sylvania, and  South  Carolina. 

The  article  on  the  judiciary  approached  closely  to  origi- 
nality. With  no  exact  precedent  for  it  in  history,  it  was 
worked  out  as  an  agency  to  meet  an  obvious  demand. 
Among  the  reforms  early  demanded  after  the  ratification 
of  the  Articles  of  Confederation,  had  been  that  for  the  sep- 
aration of  the  powers  of  government  and  the  organization 
of  a  separate  judicial  department.  In  some  details  the 
judicial  article  ran  back  to  the  judiciary  provisions  in 

1  New  Hampshire,  New  Jersey,  Pennsylvania,  Delaware,  and  South 
Carolina. 

3     . 


34       A    CONSTITUTIONAL   HISTORY   OF 

the  state  constitutions,  but  only  so  far  as  these  outlined 
the  mere  process  in  judicial  proceedings.  The  jurisdiction 
of  the  national  judiciary  was  a  distinct  creation.  The  pro- 
vision on  treason  has  its  precedent  in  the  British  statute 
of  1352.  Morris  took  the  judicial  article  as  it  came  to 
him  from  the  convention,  and  transcribed  it  with  a  few 
verbal  changes.  The  provision  respecting  public  records 
was  obviously  necessary,  as  was  also  that  for  the  admis- 
sion of  new  states  and  the  obligation  of  the  public  debt. 

The  Constitution  was,  therefore,  the  embodiment  in 
written  form  of  a  system  of  national  government  which 
had  been  worked  out  in  this  country  during  the  colonial 
period,  and  the  roots  of  which  ran  deep  into  very  ancient 
soil.  It  was  a  plan  of  government,  not  a  code  or  a 
statute.  It  does  not  resemble  an  act  of  the  legislature; 
it  is  an  embodiment  of  working  principles  defining  with 
practical  accuracy  the  co-relation  of  its  parts  and  depend- 
ing upon  its  administration.  But  when  it  was  sent  forth 
for  the  approval  of  the  people  in  the  several  states,  it  was 
considered  as  nothing  more  than  a  new  plan  of  federal 
government  based  upon   familiar  republican  principles.^ 

1  For  a  critical  account  of  the  sources  and  the  authorship  of  the 
Constitution,  see  the  author's  "Constitutional  History  of  the  United 
States,  1765-1895,"  vol.  iii,  pp.  463-!;i5;  for  the  Federal  Convention  and 
its  work,  id.  vol.  i,  pp.  291-595  See  also  Curtis's  "  Constitutional  His- 
tory of  the  United  States,"  vol.  i;  Bancroft's  "  History  of  the  Forma- 
tion of  the  Constitution,"  vol.  ii,  and  Meigs's  "The  Constitution  in  the 
Federal  Convention."  The  most  important  minor  authorities  and  spec- 
ial articles  are  cited  in  the  above,  passim. 


THE   UNITED    STATES  35 


CHAPTER   HI 

FIRST   PRINCIPLES 

In  acknowledging  the  receipt  of  a  copy  of  "  The  Federal- 
ist "  ^  on  the  28th  of  August,  1788,  Washington  wrote  to 
Hamilton  :  "  When  the  stringent  circumstances  and  fugitive 
performances  which  attend  this  crisis  shall  have  disap- 
peared, that  work  will  merit  the  notice  of  posterity,  be- 
cause in  it  are  candidly  discussed  the  principles  of 
freedom  and  the  topics  of  government  which  will  always 
be  interesting  to  mankind  so  long  as  they  shall  be  con- 
nected in  civil  society."  This  was  written  when  the  long 
debate  over  ratifying  the  Constitution  had  closed,  and 
preparations  were  in  progress  for  the  election  of  President 
and  Vice-president  and  the  inauguration  of  the  new 
government. 

The  authors  of  the  Federalist  —  Hamilton,  Madison, 
and  Jay  —  addressed  it  to  the  people  of  the  state  of  New 
York.  The  Anti-Federalists  looked  upon  it  merely  as  a 
party  pamphlet  and  attempted  to  answer  it,^  but  their 
pamphlets  have  long  been  forgotten.  It  remains  the  earli- 
est authoritative  interpretation  of  the  Constitution,  and 
of  the  principles  on  which  government  in  America  is 
founded.  Alexander  Hamilton,  its  chief  author,  was  the 
first  to  suggest  a  federal  convention,^  and  his  sketch  of  a 

1  The  citations  in  this  chapter  are  to  the  first  edition  of  "The 
Federalist." 

^  The  most  influential  Anti- Federalist  pamphlets  were  Richard  Henry 
Lee's  "  Observations  of  the  System  of  Government  Proposed  by  the  late 
Convention  ";  known  also  as  the  "  Letters  of  a  Federal  Farmer";  George 
Mason's  "Objections  to  the  Federal  Constitution,"  and  Elbridge  Gerry's 
"  Observations  on  the  New  Constitution  and  on  the  Federal  and  State 
Conventions,"  by  a  Columbia  Patriot.  These  and  other  pamphlets  on 
the  Constitution  published  during  its  discussion  by  the  people,  1787-1788, 
have  been  collected  and  edited  by  Paul  Leicester  Ford,  Brooklyn,  New 
York,  1888. 

8  In  1780. 


36       A    CONSTITUTIONAL   HISTORY    OF 

government  presented  to  the  federal  convention  contained 
twenty-two  provisions  which  ultimately  were  embodied 
in  the  Constitution.^  James  Madison  was  undoubtedly 
the  originator  of  the  Virginia  plan,  and  his  activity  in 
the  convention  has  given  him  the  name  of  the  *'  Father 
of  the  Constitution."  John  Jay  personified  the  better  in- 
fluences which  secured  the  adoption  of  the  Constitution 
by  New  York.^ 

It  has  been  well  said  that  "The  Federalist"  is  "  the  first 
exposition  of  the  Constitution,  and  the  first  step  in  the  long 
process  of  development  which  has  given  length,  meaning, 
and  importance  to  the  clauses  agreed  upon  at  Philadel- 
phia. It  has  acquired  all  the  weight  and  sanction  of  a 
judicial  decision,  and  has  been  constantly  used  as  an 
authority  in  the  settlement  of  constitutional  questions." 

The  primary  purpose  of  its  authors  was  to  show  that 
the  Constitution  embodied  the  principles  of  republican 
government;  that  it  was  analogous  to  the  state  consti- 
tutions, and  that  it  was  adapted  to  the  wants  of  America. 
The  first  number  appeared  just  forty  days  after  the  ad- 
journment of  the  convention.  At  first  the  plan  of  the 
authors  was  to  limit  the  essays  to  twenty  or  twenty-five 
numbers,  and  to  have  them  appear  in  the  Independent 
Journal  and  the  New  York  Packet,  at  intervals  of  three 
days.  In  order  to  influence  the  people  of  other  states  than 
New  York,  in  which  the  question  of  ratification  was  pend- 
ing, the  earlier  essays,  to  the  number  of  thirty-six,  were 
printed  in  a  small  volume,  which  bears  the  date  of  the 
17th  of  March,  1788.  The  remaining  forty-nine  essays 
were  completed  early  in  the  following  May,  and  on  the 
28th  of  that  month  were  published  as  a  separate  volume. 
On  the  17th  of  June  publication  in  the  newspapers  was 

1  This  fact  pretty  thoroughly  disposes  of  a  number  of  American 
writers  who  have  asserted  that  Hamilton's  views  as  presented  by  him  to 
the  convention  were  impracticable. 

2  "  The  Federalist "  consists  of  eighty-five  papers.  The  distribution 
of  the  authorship  has  long  been  a  matter  of  dispute  ;  twelve  of  the  num- 
bers may  have  been  written  either  by  Hamilton  or  by  Madison.  From 
the  best  evidence  we  have,  the  assignment  seems  to  be  as  follows  :  to 
Hamilton  fifty-one,  to  Madison  fourteen,  to  Jay  five,  to  Madison  and 
Hamilton,  jointly,  three,  to  Madison  or  Hamilton  twelve;  see  H.  C. 
Lodge's  "  Critical  Paper  on  the  Authorship  of  '  The  Federalist,' "  in  the 
introduction  of  his  edition  of  it. 


THE   UNITED    STATES  37 

resumed,  and  completed  on  the  15th  of  August;  thus  the 
first  volume  of  "  The  Federalist  "  was  in  print  before  the 
second  was  written.  It  was  on  the  receipt  of  this  first 
volume  that  Washington  wrote  to  Hamilton,  as  quoted  at 
the  opening  of  this  chapter. 

The  burden  of  the  argument  running  through  the  essays 
concerns  an  alternative :  the  adoption  of  the  Constitution 
or  the  dismemberment  of  the  Union.  Jay,  who  at  this 
time  was  secretary  of  foreign  affairs,  and  whose  famil- 
iarity with  them  made  him  an  authority,  wrote  of  the 
American  confederation  as  one  of  the  governments  of  the 
world,  which,  organized  in  time  of  war,  had  proved  in- 
effective under  the  tests  of  peace.  Several  confederacies 
had  been  suggested  as  the  remedy  for  political  ills  in 
America,  but  the  true  remedy,  he  wrote,  was  a  federal 
government  vested  with  sufficient  powers  for  general  and 
national  purposes.  United  America  would  be  the  best 
security  against  foreign  hostilities.  Only  through  an  effi- 
cient national  government  could  treaties  be  made,  or  the 
violation  of  them  be  punished.  If  foreign  relations  were 
under  the  control  of  the  national  government,  the  states 
would  not  be  tempted  to  commit  injustice  or  breaches  of 
faith.  The  nearness  of  the  states  to  the  territory  of  Spain 
and  Great  Britain  ^  was  a  constant  menace  to  the  public 
peace.  The  national  government  would  not  be  affected 
by  local  interests,  but  would  promote  the  welfare  of  the 
whole.  Availing  itself  of  the  experience  of  the  ablest  men 
of  the  whole  country,  it  would  follow  a  uniform  policy  of 
administration,  which  would  be  impossible  if  several  con- 
federacies were  formed.  "  When  a  people  or  a  family 
divide,"  wrote  Jay,  "  it  never  fails  to  be  against  them- 
selves " ;  therefore,  the  first  duty  of  the  American  people 
was  to  form  a  more  perfect  union. - 

Jay's  papers  on  the  desirability  of  a  union  under  a 
strong  national  government  follow  Hamilton's  introduc- 
tion,^ in  which  the  general  plan  of  the  essays  is  outlined. 
Though  Hamilton's  essays,  which  form  the  greater  portion 
of  the  entire  work,  touch  upon  nearly  every  detail  in  the 

*  I.e.  to  Florida,  Louisiana,  New  Spain  (Mexico,  California),  Canada. 

2  "  The  Federalist,"  Nos.  II,  III,  IV,  V. 

3  Id.  No.  I. 


622  li  fJ 


38       A    CONSTITUTIONAL    HISTORY    OF 

proposed  plan  of  government,  the  general  course  of  his 
argument  is  direct  and  easy  to  follow.  In  both  a  political 
and  an  economic  sense,  the  plan  of  government  embodied 
in  the  Constitution  would,  he  said,  be  the  most  economical 
for  the  American  people  to  institute,  and  chiefly  because 
it  provided  adequate  protection  of  the  paramount  interests 
of  the  nation.  One  national  government,  supreme  in  its 
jurisdiction,  would  be  cheaper  than  several  confederacies; 
for  each  of  these  would  not  only  be  compelled  to  maintain 
a  separate  political  system,  but  also  to  meet  the  expenses 
which  rivalries,  jealousies,  and  personal  animosities,  inci- 
dent to  adjoining  republics,  would  inevitably  produce ;  in 
proof  of  which  Hamilton  cited  the  civil  dissensions  which 
had  broken  out  in  Massachusetts,  under  Daniel  Shays,  in 
1786;  those  in  the  Wyoming  valley  in  Pennsylvania,  be- 
tween the  Connecticut  emigrants  and  those  claiming  land 
under  a  Pennsylvania  title  in  the  same  year ;  and  those  in 
western  North  Carolina,  between  that  state  and  the  people 
of  Franklin,  in  1787.^ 

Could  hostile  confederacies  preserve  the  peace  better 
than  the  states  ?  Undoubtedly  not,  because  the  danger  of 
wars  would  be  increased.  States  unfavorably  located, 
and  unable  to  share  in  the  advantages  of  ports  of  entry, 
would  unite  in  hostile  groups.  No  state  would  be  willing 
to  pay  tribute  to  another.  Independent  and  sovereign 
states,  therefore,  meant  ceaseless  war ;  from  which  pros- 
pect the  inference  lay  that  the  more  perfect  the  union  of 
the  states  the  less  provocation  there  would  be  for  war. 
Union  alone  would  prevent  them  from  falling  into  irrec- 
oncilable factions ;  thus  in  every  sense  the  formation  of 
the  Union  complied  with  the  dictates  of  a  true  political 
economy. 

And  here  Hamilton  answered  an  objection  which  had 
been  made  to  the  Constitution,  —  that  it  did  not  provide 
against  standing  armies. ^  A  firm  union  would  remove 
the  tendency  toward  war.  Exemption  from  the  need  of 
armies  would  thus  become  a  powerful,  if  not  the  chief 
deterrent  of  domestic  faction  and  insurrection ;  there- 
fore, it  was  unnecessary  to  provide  in  the  Constitution 

1  "The  Federalist,"  No.  VII.  2  i±  j^^.  VIII. 


THE   UNITED    STATES 


39 


against  standing  armies.  The  people  were  fully  protected, 
in  this  regard,  by  the  limitation  on  Congress  to  provide  for 
an  army  for  a  longer  period  than  two  years.^  The  public 
liberties  could  not  be  overturned  in  so  brief  a  time.  The 
plan  gave  ample  protection  to  the  liberties  of  the  people 
by  its  distribution  of  civil  power  into  distinct  departments, 
by  its  maintenance  of  checks  and  balances  in  legislation, 
and  by  its  institution  of  courts,  composed  of  judges  hold- 
ing offices  during  good  behavior  and  thus  being  inde- 
pendent. But  above  all  the  system  was  based  upon  the 
direct  representation  of  the  people.  It  was  their  govern- 
ment, was  subject  to  their  will,  and  was  responsive  to 
whatever  changes  they  might  see  fit  to  make  in  it.- 

Montesquieu  had  maintained  in  his  "  Spirit  of  Laws," 
that  a  confederated  republic  could  not  extend  over  a  large 
country  because  the  jealousies  inevitable  among  confed- 
erated states  would  constantly  tend  to  limit  the  extension 
of  its  jurisdiction.^  The  eminent  Frenchman's  criticism, 
Madison  explained,  did  not  apply  to  the  proposed  plan. 
There  was  a  distinction  between  a  national  union  and  a 
confederacy;  between  a  mere  consolidation  of  states  and 
a  union  of  states  upon  the  principle  of  representation.* 
The  mechanical  organization  of  the  national  government 
tended  to  prevent  the  existence  of  factions,^  and,  there- 
fore, to  remedy  the  fatal  propensity  of  republican  govern- 
ments. Madison  remarks  that  it  is  natural  for  men  to 
hold  different  opinions,  and  especially  on  government; 
whence  it  follows  that  the  first  object  of  government  is 
to  protect  the  faculties  by  which  these  opinions  are 
formed.  Government  should  protect  both  the  rich  and 
the  poor,  and  justice  should  hold  the  balance  between 
parties.  No  faction  can  permanently  settle  the  gravest 
questions  which  arise  in  a  state;  namely,  the  apportion- 
ment of  taxes,  the  regulation  of  commerce,  and  the  en- 
couragement of  home  manufactures.  Interests  apparently 
so  irreconcilable  as  these  can  be  settled  only  by  enlight- 

1  Article  T,  section  8,  clause  12. 

2  "The  Federalist,"  No.  IX. 

8  The  "  Spirit  of  Laws,"  book  IX,  chap.  i. 
4  "  The  Federalist,"  No.  XIV. 
6  Id.  No.  X. 


40       A    CONSTITUTIONAL   HISTORY    OF 

ened  statesmen,  and  yet  enlightened  statesmen  are  not 
always  to  be  found  in  a  country,  whether  great  or  small. 
For  this  reason  the  form  of  the  state,  that  is,  its  mechan- 
ical organization,  he  believed,  should,  as  far  as  possible, 
contribute  to  the  solution  of  the  problem.  If  a  state  has 
no  enlightened  leaders,  it  must  be  saved  from  itself,  if 
possible,  by  the  form  under  which  the  principles  of  its 
government  are  administered. 

This  emphasis  of  the  mechanics  of  government,  the 
mere  form  of  the  state,  is  made  throughout  "  The  Federal- 
ist," and  reflects  the  dominant  political  thought  of  the 
times  in  America.  Madison  calls  it  the  great  mechanical 
power  in  government.^  He  argued,  as  did  Hamilton  and 
Jay,  that  there  is  a  necessary  connection  between  the  char- 
acter of  a  government  and  the  form  which  the  government 
takes.  And  this  harmony  between  the  principles  and  the 
form  of  republican  government  was  attainable,  in  Hamil- 
ton's opinion,  either  by  awakening  like  passions  and 
interests  in  the  majority  of  the  people,  or  by  securing  a 
mechanical  organization  in  the  state  which  would  prevent 
concert  in  oppressive  measures.  As  the  first  is  impossible, 
the  second  must  be  sought ;  ^  whence  his  emphasis  of  the 
value  of  the  mere  form  of  republican  government.  The 
form  proposed  in  the  national  Constitution  was,  he  de- 
clared, the  practical  approximation  to  this  ideal. 

By  the  form  of  the  government  is  understood  the  divi- 
sion of  its  functions,  the  separation  of  its  parts,  and  the 
relation  existing  among  them.  And,  first  of  all,  the  form 
is  republican  because  it  is  representative ;  the  legislative, 
the  executive,  and  the  judicial  embodying  and  represent- 
ing the  will  of  the  people  in  the  direction  and  control  of 
the  public  business.  The  parts  are  not  independent.  The 
legislative  power  is  vested  in  Congress,  yet  the  chief  exec- 
utive participates  in  legislation.  The  judicial  power  is 
vested  in  one  supreme  court  and  in  inferior  courts ;  but 
the  judges  are  appointed  by  the  President  with  the  consent 
of  the  Senate,  and  are  removable  on  impeachment  by  the 
House  of  Representatives  and  conviction  by  the  Senate.^ 
The  President  is  removable  in  the  same  manner. 

1  "The  Federalist,"  No.  XIV.  «  Irl.  No.  X. 

*  Article  I,  section  2,  clause  5 ;  section  3,  clauses  6  and  7. 


THE   UNITED    STATES  41 

This  statement  of  the  distribution  of  the  powers  of  the 
government  does  not  now  give  an  adequate  idea  of  what 
the  authors  of  "  The  Federahst  "  meant  by  the  importance 
of  the  civil  form.  They  could  not  have,  save  in  theory,  an 
extensive  knowledge  of  the  actual  working  of  the  form 
they  advocated  in  administration.  To  them  the  principles 
of  the  government  were  clear,  and  the  form  was,  as  it 
were,  wedded  to  the  principles.  Adherence  to  the  form, 
therefore,  meant  adherence  to  the  principles;  whence  it 
followed,  as  a  practical  matter,  that  the  authors  of  "  The 
Federalist  "  extolled  the  concrete  form  of  the  proposed 
government,  because  in  supporting  the  form  the  American 
people  would  secure  the  benefits  of  the  principles  on  which 
the  form  is  based.  They  referred  to  the  government  as 
it  would  be  in  actual  operation,  and  to  the  Constitution  as 
a  practical  working  system ;  so  they  emphasized  provi- 
sions which  we  inherit  as  long  accepted  facts.  The  two 
Houses  of  Congress  are  not  chosen  at  the  same  time  nor  in 
the  same  manner,  nor  for  the  same  term,  nor  to  perform 
at  all  times  the  same  duties.  The  President  is  elected  in 
still  another  way  to  perform  different  duties  and  for  a 
different  term.  The  courts  are  organized  in  yet  a  different 
way.  The  government  is  so  composed  that  there  will  be 
no  lapse  or  hiatus  in  any  department.  The  Constitution 
makes  provision  for  a  continuing  system  in  every  depart- 
ment ;  it  is  planned  to  be  perpetual,  but  it  depends  directly 
upon  the  will  of  the  people  for  its  perpetuity. 

The  evils  which  government  is  designed  to  prevent, 
or  to  overcome,  are  a  constant  element  in  human  society ; 
and  the  best  that  can  be  hoped  for  in  government  will  be 
realized  under  that  civil  form,  which,  in  actual  operation, 
realizes  this  purpose  with  the  least  violence  of  principle, 
and  to  the  greatest  advantage  of  the  people.  The  authors 
of  "  The  Federalist  "  did  not  deny  that  government  is  an 
artificial  thing ;  they  nowhere  claimed,  as  is  often  claimed 
in  our  day,  that  it  is  an  organism.  They  viewed  it  as  an 
agreement,  or  compact,  made  for  a  specific  purpose. 
Madison's  notion,  —  and  Webster  held  to  it  after  him,  — 
that  the  people  must  be  saved  from  themselves,  is  a 
confession  of  belief  in  the  mechanical  theory  of  govern- 
ment which  prevailed  at  the  time  that  our  Constitution 


42       A    CONSTITUTIONAL   HISTORY   OF 

was  made.  That  notion  belongs,  as  many  now  believe,  to 
a  creed  outworn.  Whatever  may  be  said  of  the  truth  of 
that  notion  as  a  philosophical  proposition,  it  proved  a 
working  theory  in  American  government.  The  authors 
of  "  The  Federalist  "  could  do  no  more  than  argue  that  the 
national  system  proposed  in  1787  would  secure  the  ends 
outlined  in  the  preamble  to  the  Constitution :  that  it  would 
"  form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings  of 
liberty." 

When  the  Constitution  was  framed,  that  trust  in  the 
wisdom  of  the  people  which  we  find  expressed  commonly, 
by  American  statesmen  through  the  nineteenth  century, 
and  notably  in  the  time  of  Lincoln,  did  not  exist.  On  the 
contrary,  the  makers  of  the  Constitution,  with  the  possible 
exception  of  James  Wilson,  repeatedly  showed  during 
the  debates  of  the  convention  their  lack  of  faith  in  the 
capacity  of  the  people  to  govern  themselves  wisely.  Most 
conspicuous  among  those  who  doubted  the  capacity  of  the 
people  for  self-government  was  Elbridge  Gerry.  This 
distrust  of  popular  government  was  in  the  air  at  the  close 
of  the  eighteenth  century,  and  must  be  taken  into  account 
in  any  attempt  to  trace  the  growth  of  popular  govern- 
ment in  America.  This  distrust  lies  at  the  bottom  of  the 
insistence  which  Hamilton  and  Madison  put  upon  the 
importance  of  the  mere  form  of  the  government,  —  the 
mechanics  of  the  state. 

The  arguments  in  "  The  Federalist  "  were  advanced 
to  show  that  the  adoption  and  preservation  of  the  repub- 
lican form,  as  embodied  in  the  Constitution,  was  essential 
to  the  welfare  of  the  American  people.  The  L^nion  must 
be  established,  otherwise  America  would  be  ruined.  And 
first,  without  the  Union,  the  industrial  prosperity  of  the 
country  would  be  destroyed.^  A  national  government  like 
that  proposed  could  alone  protect  the  commerce  and  man- 
ufactures of  the  country.  This  meant  in  brief,  that  the 
war  powers  and  the  resources  and  functions  of  the 
national  government  must  be  adequate  to  the  protection 
of  the  people. 

1    "The  Federalist,"  No.  XI. 


THE   UNITED    STATES  43 

State  experience  under  the  Confederation  had  proved 
the  impossibiHty  of  supporting  a  general  government  by 
direct  taxation.^  Laws  levying  direct  taxes  had  multi- 
plied, but  the  state  treasuries  remained  empty.  The  sys- 
tem of  direct  taxation  had  ruined  trade.  Excises,  that  is, 
internal  indirect  taxation,  had  proved  unpopular,  there- 
fore the  chief  source  of  national  revenue  must  be  a  tax 
upon  imports.  The  system  of  taxation  must  be  applied 
for  the  benefit  of  the  people  at  large,  and  that  could 
best  be  done  under  a  general  union.  The  national  gov- 
ernment could  collect  such  a  tax  more  cheaply  than  could 
thirteen  separate  state  governments." 

"  The  .Federalist  "  emphasizes  the  distinction  between 
a  confederation  and  a  national  government : '  the  first 
'being  based  upon  civil  corporations,  which  in  America 
were  the  several  states ;  the  second  being  founded  upon 
the  people  of  the  country,  irrespective  of  their  state  affili- 
ations. A  confederation  addresses  itself  to  states,  repre- 
sented by  legislatures  and  governors,  and  executes  its 
laws  indirectly  through  them.  A  national  government 
addresses  itself  directly  to  individuals  and  executes  its 
laws  through  and  upon  them.  The  defect  in  a  confed- 
eracy is  the  lack  of  a  sanction  to  its  laws ;  in  a  national 
government  the  decrees  and  purposes  of  courts  of  law  can 
be  enforced  directly  upon  the  individuals  affected  by  them. 
As  large  bodies  of  men  act  with  no  more  justice  than  do 
individuals,  the  civil  harmony  in  a  confederation  is  less 
than  in  a  national  government,  and  harmony  is  preserved 
by  the  form  of  the  government  as  well  as  by  the  self- 
interest  of  the  individuals.  The  principal  danger  to  which 
a  confederation  is  subject  is  the  secession  of  its  members, 
the  eflfect  of  which  is  the  dissolution  of  the  Union,  because 
no  member  of  it  has  power  to  control  the  adherence  of 
the  rest.* 

Hamilton,  in  analyzing  the  defects  of  a  confederation, 
dwelt  upon  its  tendency  to  degenerate  into  a  military 
despotism. °  The  only  means  to  prevent  its  disruption 
would  be  in  the  last  resort,  —  the  coercion  of  arms,  which 

1  "The  Federalist,"  No.  XII.  2  i^i.  ^o.  XIII. 

8  Tfl.  No.  XV.  *  Id.  No.  XVI. 

5  Id.  Nos.  XVII,  XVIII. 


44        A    CONSTITUTIONAL  HISTORY    OF 

means  civil  war.  In  a  national  government  peace  and  har- 
mony might  be  preserved  by  the  coercion  of  laws ;  that  is, 
by  the  adjustment  of  legislation  to  the  changing  wants  of 
the  people. 

Many  of  the  opponents  to  the  national  plan,  in  1788, 
declared  that  the  proposed  government  would  be  too 
powerful  and  would  absorb  the  states.  Hamilton  and 
Madison  thought  it  far  easier  for  the  state  governments 
to  encroach  upon  national  authority  than  for  the  national 
government  to  encroach  upon  the  states,  and  they  based 
their  opinion  upon  the  greater  degree  of  influence  which 
the  state  governments  would  possess  immediately  with  the 
people,  because  of  their  closer  relations  with  them.  From 
this  it  followed  that  until  the  national  government  exer- 
cised the  same  means  as  the  states,  and  possessed  the  same 
powers  of  reaching  individuals,  it  would  be  subordinate 
to  the  state  governments.^  So  Hamilton  argued  that 
there  could  be  but  one  remedy  for  the  weak  attachment 
of  the  people  to  their  national  government,  and  that  was 
a  better  administration  of  the  national  government  than  of 
the  state  governments.  The  strength  of  the  new  govern- 
ment would  be  tested  by  the  eflficiency  of  its  administra- 
tion. This  is  the  grand  political  deduction  from  "  The 
Federalist." 

"  The  streams  of  national  power  flow  immediately  from 
that  pure,  original  fountain  of  all  legitimate  authority,  — 
the  consent  of  the  people  themselves."  ^  This  declaration 
by  Hamilton  is  in  principle  the  keynote  of  our  national 
system,  and  the  principle  it  figures  runs  through  all  the 
great  decisions  of  the  supreme  court  on  the  nature  of  our 
government.^ 

The  Anti-Federalists,  in  the  ratifying  conventions, 
made  common  objection  to  what  they  called  the  provision 
in  the  Constitution  for  a  standing  army.''  The  answer  in 
"  The  Federalist  "  is  that  a  small  army  is  necessary  for 
the  protection  of  the  frontier,  and  that  a  navy  is  essential 

1  "The  Federalist,"  No.  XVT.  2  i^_  No.  XXIT. 

'  It  is  applied  and  elaborated  bv  Chief-Justice  Marshall,  in  McCul- 
louph  V  Maryland,  4  Wheaton,  316  (1819),  and  again  in  Cohens  v.  Vir- 
ginia, 6  Wheaton,  264  (1821). 

*  Article  I,  section  8,  clause  12. 


THE   UNITED    STATES  45 

to  the  commercial  welfare  of  a  free  people.^  A  person 
writing  on  the  subject  to-day  would  speak  of  the  people 
of  the  United  States  as  constituting  the  equivalent  of  a 
standing  army.  Our  population  is  now  more  than  one 
hundred  millions  and  represents,  practically,  an  irresist- 
ible power.  The  economic  force  of  America  in  the  world 
to-day  is  incalculable;  it  is  sufficient,  if  justly  utilized,  to 
maintain  the  peace  of  the  world.  "  The  Federalist," 
however,  makes  no  such  reference  or  explanation.  The 
army  and  the  navy,  made  possible  by  the  Constitution, 
were  to  be  used  to  guard  the  frontiers  and  to  protect  the 
commerce  of  the  country.  The  Anti-Federalists  empha- 
sized the  objection  to  a  standing  army  and  made  vigorous 
references  to  the  attempt  of  Great  Britain,  in  1776,  to 
coerce  the  colonies.  They  did  not,  or  would  not,  conceive 
of  the  government  of  the  United  States  as  being  the  gov- 
ernment of  all  the  American  people.  They  conceived  it 
to  be  a  thing  apart  from  the  people,  and  therefore  its 
powers  should  be  reduced  to  the  lowest  terms.  In  defin- 
ing the  provision  for  an  army  and  navy,  Hamilton  applied 
his  usual  economic  test :  a  national  army  and  navy  would 
be  less  expensive  and  more  efficient  than  ships  and  troops 
supported  by  the  several  states.  They  could  be  directed 
more  effectively  than  state  forces,  especially  as  they  were 
to  be  under  the  charge  of  a  commander-in-chief.^ 

At  the  time  the  Constitution  was  made,  the  tendency  in 
constitutional  reform  was  but  slightly  toward  the  limita- 
tion of  the  power  of  the  legislature,  but  strongly  toward 
a  limitation  of  the  power  of  the  executive.^  Hamilton 
held  to  the  principle  that  "  it  is  better  to  hazard  the  abuse 
of  confidence  than  to  embarrass  a  government  and  en- 
danger the  public  safety  by  impolitic  restriction  on  the 
legislative  authority."  *  To  this  extent,  at  least,  he  was 
a  democrat,  that  he  would  trust  the  people  to  watch  over 
their  own  interests.  He  considered  the  danger,  that  the 
civil  authority  would  be  subordinate  to  the  military,  as 
passed ;  indeed,  the  peril  was  rather  the  other  way.  But 
he  concluded  that  public  confidence  in  the  government 

1  "  The  Federalist,"  No.  XXIV.  2  id.  No.  XXV. 

3  See  the  chapters  on  the  state  constitutions, /wA 

4  "  The  Federalist,"  No.  XXVI. 


46       A    CONSTITUTIONAL   HISTORY    OF 

and  the  obedience  of  the  people  to  it  would  be  proportioned 
to  the  goodness  or  badness  of  its  administration;  and 
here  he  left  the  whole  matter/ 

"  The  Federalist  "  presumes  that  the  national  govern- 
ment will  be  in  the  hands  of  men  superior  to  those  who 
direct  the  affairs  of  the  several  states,  because  of  the 
larger  questions  involved;  and  this,  whether  these  men 
were  chosen  directly  by  the  people  or  indirectly  by  the 
state  legislatures.  But  on  this  point  "  The  Federalist " 
spoke  to  a  doubting  people  who  had  quite  lost  confidence  in 
federal  unions  because  of  the  failure  of  the  Confederation. 
For  some  time  before  its  collapse,  in  1 786-1 787,  the  ablest 
men  in  the  country  were  in  the  service  of  the  states,  and 
it  seemed  doubtful  that  service  under  the  United  States 
would  ever  again  attract  them.  Washington  found  it 
difficult  to  secure  the  right  kind  of  men  to  fill  the  offices 
in  the  new  government.  In  this  respect  men  and  things 
have  changed ;  federal  offices  are  now  preferred  to  state 
offices.  Hamilton  anticipated  this.  He  believed  it  would 
follow,  as  soon  as  the  most  important  interests  of  the  indi- 
vidual were  in  any  way  identified  with  the  organization 
and  interests  of  the  national  government. 

A  common  objection  of  the  Anti-Federalists  to  the 
Constitution  was  the  power  of  taxation  which  they  asserted 
it  gave  to  Congress.  They  claimed  that  the  power  was 
unlimited,  and  would  in  all  probability  be  abused.  The 
reply  of  "  The  Federalist  "  was  complete :  "  Money," 
says  Hamilton,  "  is,  with  propriety,  considered  as  the 
vital  principle  of  the  body  politic ;  as  that  which  sustains 
its  life  and  motion  and  enables  it  to  perform  its  most 
essential  functions.  A  complete  power,  therefore,  to  pro- 
cure a  regular  and  adequate  supply  of  it,  as  far  as  the 
resources  of  the  community  will  permit,  may  be  regarded 
as  an  indispensable  ingredient  in  every  constitution. 
From  a  deficiency  in  this  particular,  one  of  two  evils  must 
ensue:  either  the  people  must  be  subject  to  continual 
plunder,  as  a  substitute  for  a  more  eligible  mode  of  supply- 
ing the  public  wants,  or  the  government  must  sink  into  a 
fatal  atrophy,   and  in   a  short  course  of  time  perish."  ^ 

1  "The  Federalist,"  No.  XXVII.  2  id.  No.  XXX. 


THE   UNITED    STATES  47 

And  he  laid  it  down  as  a  political  maxim  "  That  in  the 
usual  progress  of  things,  the  necessities  of  a  nation  in 
every  step  of  its  existence  will  be  found  at  least  equal 
to  its  resources."  ^  From  this  follows  the  inference  that 
the  power  of  the  general  government  to  utilize  its  re- 
sources should  be  unlimited ;  therefore  there  should  be 
an  unlimited  power  of  taxation.  The  national  govern- 
ment would  thus  secure  the  first  condition  of  maintaining 
public  credit. 

The  exercise  of  the  power  would  be  the  test  of  con- 
gressional discretion.  In  the  exercise  of  this  discretion 
the  people  themselves  would  bear  the  responsibility,  for 
they  would  select  their  own  representatives.  The  con- 
trolling principle  in  the  exercise  of  the  taxing  power, 
Hamilton  maintained,  is  the  same  as  that  which  prevails 
in  the  organization  of  the  government  itself:  a  national 
government  must  contain  within  itself  every  power  that 
is  requisite  to  the  full  accomplishment  of  the  objects 
committed  to  its  care  and  to  the  complete  execution  of 
the  trusts  for  which  it  is  responsible,  and  be  free  from 
control,  save  a  regard  to  the  public  good.^  He  deduced 
three  principles  of  administration  from  his  general  prin- 
ciple of  taxation :  first,  that  as  there  can  be  no  possible 
limits  assigned  to  the  casualties  and  dangers  to  which 
a  government  may  be  subject,  the  power  of  providing 
against  them  should  have  no  other  bounds  than  the  exi- 
gencies of  the  nation  and  the  resources  of  the  community ; 
secondly,  that  as  revenue  is  the  means  for  meeting  these 
exigencies,  the  power  for  procuring  it  should  be  unlim- 
ited ;  and  thirdly,  that  the  federal  government  must  of 
necessity  be  invested  with  an  unqualified  power  of  taxa- 
tion in  the  ordinary  modes  pursued  by  governments ; 
which  last  conclusion  he  based  upon  the  unhappy  experi- 
ence of  the  people  under  the  Articles  of  Confederation.' 
These  maxims  of  administration  are  only  a  condensation 
of  the  principle  of  which  the  entire  "  Federalist  "  is  an 
elaboration,  —  that  in  government  the  means  must  be 
adequate  to  the  ends  proposed.* 

1  "The  Federalist,"  No.  XXX.  2  jj.  Nq.  XXX F.  s  ij. 

*  This  principle  was  applied  by  Chief-Justice  Marshall,  in  McCullough 
r.  Maryland,  4  Wheaton,  316. 


48       A    CONSTITUTIONAL   HISTORY    OF 

To  the  common  objection  of  the  Anti-Federalists,  that 
the  proposed  national  government  might  usurp  powers 
dangerous  to  the  people,  "  The  Federalist "  made  one 
conclusive  reply :  "  All  observations  founded  upon  the 
danger  of  usurpation  ought  to  be  referred  to  the  com- 
position and  structure  of  the  government,  not  to  the 
nature  or  extent  of  its  powers."  ^  In  other  words,  no 
matter  what  may  be  the  form  of  our  national  government 
it  must  of  necessity  possess  adequate  powers,  and  of  these 
that  of  taxation  is  of  first  importance.  The  unlimited 
power  in  the  national  government  to  levy  taxes  does  not 
conflict  with  the  power  in  the  legislatures  to  provide  state 
revenues.  The  people  delegate  the  taxing  power  to  two 
bodies  of  men,  —  Congress  and  the  state  legislatures,  and 
rely  upon  the  discretion  of  these  neither  to  confuse  nor  to 
abuse  their  authority.  The  federal  convention  was  very 
skilful  in  avoiding  a  possible  collision  between  the  state 
governments  and  the  national  government  in  the  matter  of 
taxation.  No  limitation  of  the  power  of  the  states  to  tax, 
found  in  the  Constitution,  in  any  way  deprives  them  of 
the  power  to  raise  an  adequate  revenue  for  strictly  state 
purposes.^  The  prevention  of  excessive  taxation  is  the 
preservation  of  taxable  resources.^  If  a  tax  upon  an 
article  is  exorbitant,  its  use  will  cease,  or  the  law  will 
be  evaded.     In  either  case  revenue  fails. 

The  authors  of  "  The  Federalist  "  based  their  expo- 
sition of  the  administration  of  national  finances  upon  the 
desirability  of  a  tarifif  for  revenue.  The  system  of  taxa- 
tion which  Congress  would  be  likely  to  adopt  would 
bring  about  a  national  revenue  derived  chiefly  from  duties 
on  imports,  and,  to  Hamilton's  mind,  a  system  of  this 
kind  was  more  likely  to  divide  the  burden  of  tax  equi- 
tably among  the  people  than  any  other  that  could  be 
devised.  This  is  a  point  on  which  men  have  difl!^ered, 
and  their  conflicting  opinions  lie  at  the  bottom  of  the 
doctrines  which  political  parties  have  enunciated  in  this 
country  on  the  subject  of  revenue,  taxation,  and  manu- 
factures, now  for  more  than  a  century. 

1  "The  Federalist,"  No.  XXXI. 

2  For  an  elaljorate  analysis  and  discussion  of  this  point,  see  Ex  parte 
Siebold.  too  U.  S.  -^71. 

«  "The  Federalfst."  No.  XXXV. 


THE   UNITED    STATES  49 

"Among  the  difficulties  encountered  by  the  (federal) 
convention,"  says  Madison,  "  a  very  important  one  must 
have  lain  in  combining  the  requisite  stability  and  energy 
in  government  with  the  inviolable  change  due  to  liberty 
and  to  a  republican  form."  ^  Th£.  history  of  energetic 
governments  is  the  history  of  monarchies.  Confedera- 
cies and  all  liberal  governments  have  usually  lacked 
energy.  It  was  a  problem  at  the  time  when  our  Consti- 
tution was  made,  whether  the  energy  requisite  to  a  gov- 
ernment could  be  secured  in  one  of  republican  form. 
The  authors  of  "  The  Federalist  "  argued  that  the  prob- 
lem had  been  solved  in  the  Constitution  of  the  United 
States  by  the  separation  of  powers  and  the  definition  of 
functions,  —  that  is,  by  the  adoption  of  what  they  called 
"  a  system  of  checks  and  balances."  Madison  defines  a 
republic  as  "  a  government  which  derives  all  its  powers 
directly,  or  indirectly,  from  the  great  body  of  people, 
and  is  administered  by  persons  holding  office  during  their 
pleasure,  for  a  limited  period,  or  during  good  behavior."  ^ 
The  national  government  rests  upon  the  people;  is  re- 
publican, that  is,  representative  in  form ;  contains  within 
itself  the  regulation  of  its  own  energy  for  its  control  or 
direction  of  the  public  business,  and  is  responsible  to 
the  people. 

The  means  by  which  the  government  is  thus  made  re- 
sponsive to  the  public  will  springs  from  its  organization. 
The  terms  for  federal  officers  vary ;  their  powers  are 
defined,  and  the  operations  of  the  government  itself  are 
divided  and  classified.  Thus  we  come  back  to  the  me- 
chanical arrangement  of  the  government  as  the  means  of 
constituting  a  system  of  checks  and  balances  for  prevent- 
ing the  abuse  of  power.  The  foundation  of  the  govern- 
ment of  the  United  States  is  federal  because  it  was  ratified, 
not  by  the  individuals  who  compose  the  nation,  but  by  the 
people  grouped  in  states.  It  was  founded  neither  by  the 
decision  of  the  majority  of  the  people,  nor,  adds  Madison, 
of  a  majority  of  the  states,  but  by  the  assent  of  a  definite 
number  of  states.^  Its  powers  are  in  part  from  a  national, 
in  part  from  a  federal  source;    those  exercised  by  the 

1  "  The  Federalist,"  No.  XXXVII.  a  Id.  No.  XXXIX. 

•  Constitution,  Article  VII. 

4 


50       A   CONSTITUTIONAL   HISTORY    OF 

Senate  from  a  federal ;  those  exercised  by  the  President 
and  by  the  national  judiciary  from  a  national;  therefore, 
the  sources  from  which  the  powers  of  the  United  States 
are  derived  are  neither  wholly  federal  nor  wholly  national.^ 
In  its  operation,  the  government  is  national,  not  federal, 
because  it  executes  its  will  directly  upon  the  citizens  in 
their  individual  capacities.  In  the  extent  of  its  powers  it 
is  federal,  not  national,  because  they  are  delegated,  and 
*'  its  jurisdiction  extends  to  certain  enumerated  objects 
only,  and  leaves  to  the  several  states  the  residuary  and 
inviolable  sovereignty  over  all  other  objects."  ^  The  pro- 
cedure in  amending  the  form  of  government  is  partly 
national  and  partly  federal.  An  amendment  must  be 
proposed  either  by  Congress,  which  would  be  a  national 
procedure,  or  by  conventions  of  the  states,  —  a  federal 
procedure ;  and  it  must  be  adopted  by  a  prescribed  num- 
ber of  states,  —  a  federal  act.^  The  government  of  the 
United  States  is  wholly  national,  therefore,  only  in  the 
operation  of  its  powers.  In  its  foundation,  in  its  source, 
in  the  extent  of  its  powers,  and  in  the  mode  of  its 
amendment  it  partakes  both  of  national  and  of  federal 
characteristics. 

1  "The  Federalist,"  No.  XXXIX.  2  id. 

8  The  fifteen  amendments  which  have  been  adopted  have  emanated 
from  Congress  ;  although  the  first  ten  were  compiled,  as  it  were,  from 
the  one  hundred  and  sixty-one,  proposed,  in  one  form  or  another,  by  the 
ratifying  conventions  in  1 787-1 788. 


THE   UNITED    STATES  51 


CHAPTER   IV 

First  Principles  (Continued) 

The  principle  being  established  that  a  government  must 
possess  powers  adequate  to  the  ends  which  it  seeks  to 
attain,  it  follows  that  the  specification  of  these  powers, 
either  directly  by  enumeration,  or  impliedly  by  adminis- 
tration, will  be  largely  a  matter  of  expediency.  The  prob- 
lem is  practically  a  political  one,  which  must  be  solved  in 
the  best  manner  possible  from  time  to  time.  But  the 
problem  involves,  as  Madison  expresses  it,  "  questions  of 
a  very  delicate  nature."  ^  Throughout  "  The  Federalist  " 
the  national  government  is  usually  termed  the  Confedera- 
tion or  the  Confederacy,  for  the  word  "  national,"  in  the 
sense  in  w^hich  it  is  now  employed,  did  not  come  into 
common  use  until  after  i860.  One  of  the  questions  of  a 
very  delicate  nature  of  which  Madison  speaks,  is  of  the 
right  of  the  federal  government  to  coerce  a  state  in  case 
of  its  secession.  He  offers  no  direct  answ^er  to  the  prob- 
lem; he  conceives  of  the  Constitution  as  a  compact  be- 
tween the  states,  and  that  if  the  time  ever  should  come 
when  a  member  of  the  Union  would  attempt  to  secede, 
it  would  "  find  it  a  difficult  task  to  answer  the  multiplied 
and  important  infractions  "  with  which  it  might  be  con- 
fronted. This  means,  if  it  means  anything,  that  the 
difficulties  which  the  secession  of  a  state  would  entail 
upon  it  would  be  so  great  as  practically  to  prevent  seces- 
sion. The  authors  of  "  The  Federalist  "  relied  upon  the 
provision  in  the  Constitution  for  its  amendment  as  a  pre- 
ventive of  secession. - 

The  opponents  of  the  Constitution  reiterated  their  fears 
of  the  abuse  of  power  by  the  general  government.  The 
answer  of  "  The  Federalist  "  is  comprehensive  and  com- 

1  "The  Federalist."  No.  XLIII.  ^  ij.  No.  XLIX. 


52       A   CONSTITUTIONAL   HISTORY   OF 

plete :  that  in  government  it  is  "  a  received  and  well- 
founded  maxim,  that  where  no  other  circumstances  affect 
the  case,  the  greater  the  power  is,  the  shorter  ought  to  be 
its  duration,  and  conversely,  the  smaller  the  power  the 
more  safely  may  its  duration  be  protracted."  ^  The  entire 
change  of  the  House  of  Representatives  every  two  years, 
if  the  people  so  will ;  the  retirement  of  the  President  after 
a  term  of  four  years  or  sooner,  if  he  should  be  impeached, 
and  the  retirement  of  one-third  of  the  Senate  every  two 
years,  illustrate  the  practical  working  of  its  mechanisrn. 
The  organization  of  the  government  makes  it  difficult,  if 
not  impossible,  for  those  in  power  to  abuse  it,  at  least 
for  a  long  period  of  time.  The  principle  thus  laid  down 
in  "  The  Federalist "  was  stated  in  somewhat  difficult 
language,  but  perhaps  more  forcibly  later  by  Lincoln: 
"  By  the  form  of  the  government  under  which  we  live 
this  same  people  have  wisely  given  their  public  servants 
but  little  power  for  mischief ;  and  have  with  equal  wis- 
dom, provided  for  the  return  of  that  little  to  their  own 
hands  at  short  intervals.  While  the  people  retain  their 
virtue  and  vigilance  in  administration,  only  the  extreme 
of  wickedness  or  folly  can  very  seriously  injure  the  gov- 
ernment in  the  short  space  of  four  years."  ^ 

Objection  was  made  to  the  Constitution,  when  it  was 
before  the  people  for  ratification,  that  it  did  not  provide 
an  adequate  popular  representation ;  that  the  membership 
of  the  two  Houses  of  Congress  was  too  small.  Comment- 
ing on  this  objection,  "  The  Federalist  "  remarks  on  the 
principle  which  should  be  followed  in  representation : 
that  the  legislative  body  should  be  sufficiently  large  to 
guard  against  too  easy  a  combination  for  improper  pur- 
poses, and  sufficiently  small  to  avoid  the  abuses  and 
interference  of  the  multitude.-''  The  number  of  members, 
therefore,  in  either  House,  should  depend  upon  the  proper 
requisites  for  a  working  legislative  body  quite  as  much 
as  upon  any  strictly  mathematical  basis  of  representation ; 
and  this  rule  has  been  followed  since  1850,  in  determin- 
ing the  size  of  the  House  of  Representatives.     Of  course 

1  "  The  Federalist,"  No.  LII. 

2  First  Inaugural ;   Works,  vol.  ii,  p.  7  ;  Richardson,  vol.  vi,  p.  11. 
8  "  The  Federalist,"  No.  LV. 


THE    UNITED    STATES  53 

the  number  of  senators  is  determined  by  the  number  of 
states. 

A  more  serious  objection  was  made  by  the  Anti-Feder- 
ahsts :  that  the  House  of  Representatives  would  make 
legal  discriminations  in  its  own  favor,  or  on  behalf  of  a 
particular  class.  "  The  Federalist  "  answers  that  such  an 
invidious  discrimination  is  against  the  genius  of  the  whole 
system  proposed.^  The  laws  of  Congress  must  be  of  a 
general  nature,  or,  if  of  practical  application,  be  in  sub- 
stance and  spirit  a  component  part  of  general  legislation. 
The  preventive  of  odious  legislation  by  Congress  must  be 
the  same  as  the  preventive  of  unjust  taxation :  that  is,  the 
wisdom  and  discretion  of  the  law  makers.  The  exclusive 
power  of  the  House  to  originate  money  bills  was  regarded 
by  Hamilton  as  the  most  complete  and  effective  weapon 
with  which  any  constitution  could  arm  the  immediate 
representatives  of  the  people  for  obtaining  a  redress  of 
every  grievance,  and  for  carrying  into  effect  every  just 
and  salutary  measure.^  If  in  practice  this  exclusive  power 
has  not  proved  so  strong  a  check  as  the  authors  of  "  The 
Federalist  "  anticipated,  the  effect  does  not  diminish  the 
relevancy  and  force  of  their  argument.  In  the  eighteenth 
century,  and  especially  when  the  first  American  consti- 
tutions were  framed  (i  776-1 789),  the  exclusive  right  of 
the  lower  House  to  originate  money  bills  was  conceived 
to  be  the  chief  security  of  the  people.^  The  authors  of 
"  The  Federalist "  in  making  up  their  argument  on  this 
point  merely  utilized  a  prevailing  opinion  of  their  time.* 

That  the  proposed  national  government  contains  within 
itself  the  means  of  its  preservation  is  a  major  premise  of 
"  The  Federalist."  ^  It  is  essential  to  the  exclusive  work- 
ing of  any  government  that  it  possesses  practically  un- 
restricted power.     In  a  representative  government  like 

1  "The  Federalist,"  No.  LVII.  2  ij.  No.  LVIII. 

"  See  chap.  v. 

*  The  feeble  foundation  of  this  popular  belief  and  the  impotency  in 
practice  of  the  exercise  of  the  exclusive  right  by  the  house  to  origi- 
nate money  bills  was  soon  recognized  by  the  people.  The  state  consti- 
tutions adopted  after  1820  usually  gave  either  house  the  right  to  originate 
money  bills.  The  protection  of  the  people  lies  in  the  exercise  of  discre- 
tion by  the  legislature,  whether  state  or  natioival,  and  whether  the  powers 
granted  are  common  or  exclusive. 

6  "The  Federalist,"  No.  LIX. 


54       A    CONSTITUTIONAL   HISTORY    OF 

our  own,  the  great  organisms,  its  executive  and  legislative 
branches,  are  the  free  choice  of  the  people.  The  source 
of  danger  is  in  the  control  of  elections  by  violence  and 
corruption.  The  preservation  of  the  national  govern- 
ment, therefore,  means  practically,  with  us,  the  preserva- 
tion of  the  purity  and  freedom  of  elections.^  Hamilton 
and  his  colleagues  in  "  The  Federalist  "  do  not  emphasize 
the  vital  importance  of  the  purity  and  freedom  of  elec- 
tions. The  subject  was  one  of  which  they  could  not  speak 
authoritatively,  because  at  the  time  "  The  Federalist " 
was  written  the  Constitution  was  not  yet  ratified.  It 
might  reasonably  be  expected  that  after  the  experience 
of  the  revolution  the  American  people  would  be  watchful 
of  their  own  interests.  Generally  speaking,  flagrant  vio- 
lations of  election  laws  were  not  frequent  until  after  the 
extension  of  the  sufifrage  to  the  negro  in  1867;  and  in 
1787  universal  suffrage  was  not  advocated  by  any  re- 
spectable body  of  people.  Indeed,  universal  sufifrage  at 
that  time,  as  the  debates  in  the  federal  convention  show, 
was  feared  rather  than  desired.  The  founders  of  our  gov- 
ernment were  familiar  with  a  limited  sufifrage,  guarded 
by  property,  and  by  racial,  and  in  some  states,  by  religious 
qualifications.^  The  whole  matter  of  the  control  of  the 
suffrage  was  left  to  the  states. 

When,  in  "  The  Federalist,"  it  is  said  that  the  national 
government  should  contain  within  itself  the  means  of  its 
own  preservation,  its  authors  were  thinking  of  the  organ- 
ization and  mechanical  arrangement  of  the  national  gov- 
ernment ;  its  House  of  Representatives,  chosen  by  the 
voters  in  the  several  states ;  its  Senate,  chosen  by  the 
state  legislatures ;  its  President,  chosen  by  a  special  body 
of  electors;  and  its  judiciary,  appointed  by  the  President 
with  the  consent  of  the  Senate.  In  other  words,  they  were 
thinking  of  a  federal  not  of  a  national  government.  Tliey 
were  not  thinking  of  national  citizenship  as  the  primary 
source  of  national  authority. 

1  Ex  parte  Yarborough,  no  U.  S.  Reports,  pp.  651-667;  see  also 
"  Kent's  Commentaries,"  vol.  i,  p.  201.     (Twelfth  lulition.) 

"^  For  an  account  of  the  suffrage  in  the  eighteenth  century  in  America, 
see  the  author's  "  Constitutional  History  of  the  American  People,  1776- 
1850,"  vol.  i,  chaps,  iii,  vii,  xii. 


THE   UNITED    STATES  55 

The  federal  character  of  the  general  government  is 
illustrated  in  the  Senate,  which,  "  The  Federalist  "  de- 
clares, is  "  a  constitutional  recognition  of  the  portion  of 
sovereignty  remaining  in  the  individual  states,  and  an 
instrument  for  preserving  that  residuary  sovereignty."  ^ 
Now  it  will  require  but  little  reflection  to  reach  the 
conclusion  that  to  form  a  clear  idea  of  "  residuary  sov- 
ereignty "  is  very  difficult ;  indeed,  the  phrase  is  self- 
contradictory  ;  sovereignty  means  simply  absolute  and 
unlimited  power.  The  term  "  residuary  "  signifies  a  limi- 
tation and  destruction  of  sovereignty,  yet  the  notion  of 
residuary  sovereignty,  as  a  paramount  quality  of  the 
state  governments,  has  been  sustained  repeatedly  by  the 
courts,^  and  has  become  a  working  idea  in  the  American 
system.  Practically,  it  means  that  the  states  control  their 
own  strictly  domestic  aflfairs,  and  that  with  these  the 
general  government  has  nothing  to  do.  The  recognition 
of  this  local  freedom  and  independence  is  called  residuary 
sovereignty  in  "  The  Federalist,"  and  the  phrase  remains 
one  of  vague  but  generally  accepted  meaning  in  our 
political  vocabulary. 

The  purpose  of  the  Senate  in  our  national  system  was 
somewhat  complex  ;  namely,  to  represent  the  several  states 
as  political  corporations,  and  to  perform  special  functions ; 
for  example,  to  act  as  a  court  in  cases  of  impeachment 
and  to  participate  with  the  President  in  the  exercise  of 
the  appointing  power  and  in  the  making  of  treaties. 
The  principal  reason  for  assigning  it  these  special  prerog- 
atives was  based  on  its  permanency  and  size.  The  Senate 
most  nearly  approaches  a  permanent  body  of  any  depart- 
ment of  the  national  government :  its  membership  can 
never  be  large  and  its  members  are  elected  for  six  years ; 
relatively  a  long  term.  Hamilton,  when  discussing  the 
organization  of  the  Senate  in  the  federal  convention, 
urged  life  membership.  He  desired  to  approach  as  closely 
as  possible  the  organization  of  the  House  of  Lords.  His 
search  was  for  independence  and  permanency.  But  a  leg- 
islative term  for  life  was  not  in  harmony  with  the  repub- 

1  "The  Federalist."  No.  LXII. 

2  As  in  Texas  v.  White,  7  Wallace,  700  (1S68). 


56       A    CONSTITUTIONAL    HISTORY    OF 

lican  system,  as  understood  in  America.  The  term  for 
six  years  was  a  compromise.  It  is  not  because  a  senator 
represents  a  state,  but  because  he  holds  office  for  six 
years  that  gives  so  great  value  to  his  functions.  As 
"  The  Federalist  "  expresses  it,  the  Senate  is  a  permanent 
guarantee  against  "  the  mutability  in  the  public  councils 
from  a  rapid  succession  of  new  members,  however  quali- 
fied they  may  be.''  ^ 

The  annual  term  for  the  legislature  prevailed  in  all  the 
states  at  the  time  the  national  constitution  was  framed. 
In  Connecticut,  during  the  colonial  period,  there  were 
for  a  time  semi-annual  elections  of  the  legislature.  The 
annual  term  may  be  said  to  represent  the  conviction  of 
the  American  people  in  the  eighteenth  century,  that  the 
law-making  body  should  closely  represent  changes  in  pub- 
lic opinion.  Under  the  Articles  of  Confederation  mem- 
bers of  Congress  could  be  recalled  by  the  legislatures, 
which  elected  them,  at  any  time,  —  a  condition  of  affairs 
which  carried  the  democratic  doctrine  of  representation 
to  an  extreme,  and  which  was  one  of  the  primary  causes 
of  the  collapse  of  the  Confederacy.  The  evil  results  were 
realized  at  the  time  the  Constitution  was  made.  "  The 
want  of  confidence  in  the  public  council  damps  every 
useful  undertaking,  the  success  and  profit  of  which  may 
depend  on  a  continuance  of  existing  arrangements.  .  .  . 
No  government,  any  more  than  an  individual,  will  long 
be  respected,  without  being  truly  respectable  ;  nor  be  truly 
respectable  without  possessing  a  certain  portion  of  order 
and  stability."  ^ 

Here,  too,  "  The  Federalist "  clearly  indicates  one  of 
the  chief  purposes  in  creating  the  United  States  Senate: 
namely,  to  secure  order  and  stability  in  the  government. 
In  a  monarchy,  order  and  stability  are  secured  largely  by 
distinct  and  fixed  classes  of  people:  the  royal  house,  the 
nobles,  and  the  commons.  In  a  republican  government, 
no  such  distinctions  can  exist ;  for  if  they  exist,  there  can 
be  no  republican  government.  The  framers  of  the  Consti- 
tution, therefore,  had  to  work  out  devices  and  substitutes 
for  organizations  which  they  had  known  all  their  lives 
as  Englishmen.     The  Senate  was  one  of  these  devices. 

1  "The  Federalist,"  No.  LXII.  »  Id. 


THE   UNITED    STATES  57 

It  was  the  outgrowth  of  a  conscious  effort  in  America 
to  secure  stability  in  legislation. 

"  The  objects  of  government  may  be  divided  into  two 
general  classes :  the  one  depending  on  measures  which 
have  single  and  immediate  and  sensible  operation ;  the 
other  depending  on  a  succession  of  well  chosen  and  well 
connected  measures  which  have  a  gradual  and  perhaps 
unobserved  operation."  ^  In  other  words,  some  of  the 
objects  of  government  are  temporary,  others  permanent. 
But  it  requires  sagacity  and  large  practical  knowledge  to 
be  able  to  discriminate  and  to  determine  what  measures 
shall  be  temporary  and  what  permanent.  Sooner  or  later 
every  government  must  determine  what,  in  a  general  way, 
its  faxed  policy  shall  be ;  just  as  an  individual  must  decide 
in  a  general  way  on  his  course  in  life. 

A  democracy  is  by  nature  the  most  unstable  form  of 
government,  unless  a  fixed  public  policy,  clearly  outlined 
in  its  constitution  or  its  traditions,  is  adhered  to ;  or  its 
people,  experienced  in  government,  shall  have  formed  the 
unalterable  habit  of  pursuing  such  a  policy.  Either  of 
these  conditions  is  rare.  Human  nature  is  uncertain. 
The  idea  is  well  expressed  in  the  constitution  of  Massa- 
chusetts of  1780,  that  government  should  be  one  "  of  laws 
and  not  of  men."  This  means  in  practical  politics  that  the 
mechanics  or  arrangement  of  the  government  will  be  such 
as  practically  to  prevent  a  dangerous  departure  from  the 
principle.  A  fixed  public  policy  will  be  secured,  if  se- 
cured at  all,  by  the  actual  workings  of  the  government. 
The  framers  of  the  Constitution  sought  to  secure  this 
result  by  a  system  of  checks  and  balances ;  that  is,  by 
the  actual  working  together  of  the  executive,  the  legisla- 
tive, and  the  judiciary  departments.  In  the  scheme  the 
Senate  represents  permanency  and  stability,  and  is  de- 
fended in  "  The  Federalist "  because  it  would  possess,  or 
promise  to  possess,  these  quaUties.  It  promised  to  be 
the  chief  factor  in  securing  the  most  desirable  thing 
in  government,  —  a  fixed  policy. 

The  participation  of  the  Senate  in  the  making  of  treaties 
is  defended  in  "  The  Federalist  "  by  Jay,  on  the  ground 
that  "  the  state  legislatures  who  appoint  the  senators  will 

1  "The  Federalist,"  No.  LXIII. 


58       A    CONSTITUTIONAL   HISTORY    OF 

in  general  be  composed  of  the  most  enlightened  and  re- 
spectable citizens ;  there  is  reason  to  presume  that  their 
attention  and  their  votes  will  be  directed  to  those  men 
only  who  have  become  most  distinguished  by  their  abili- 
ties and  virtue,  and  in  whom  the  people  perceive  just 
grounds  for  confidence.  .  .  .  The  inference  which  nat- 
urally results  is  that  the  President  and  senators  so  chosen 
will  always  be  of  the  number  of  those  who  best  under- 
stand our  national  interests,  whether  considered  in  rela- 
tion to  the  several  states  or  to  foreign  nations,  who  are 
best  able  to  promote  those  interests,  and  whose  reputation 
for  integrity  inspires  and  merits  confidence.  With  such 
men  the  power  of  making  treaties  may  be  safely  lodged."  ^ 
A  popular  assembly  would  be  too  large,  too  volatile,  too 
liable  to  prejudice;  in  other  words,  could  not  be  trusted. 
Treaties  are  matters  often  requiring  secrecy  and  despatch : 
requisites  which  could  not  be  expected  in  a  popular 
assembly.  The  treaty-making  power  was  therefore  wisely 
given  to  the  President  and  the  Senate. 

The  Anti-Federalists  objected  to  the  Constitution  be- 
cause it  declares  that  treaties  are  a  part  of  the  supreme 
law  of  the  land :  whence,  they  asserted,  that  the  President 
and  the  Senate  would  act  "  without  an  equal  eye  to  the  in- 
terests of  all  the  states."  Jay  observed  that  the  opponents 
of  the  system  seemed  "not  to  consider  that  the  judgments 
of  our  courts,  and  the  commissions  constitutionally  given 
by  our  governor,  are  as  valid  and  as  binding  on  all  per- 
sons whom  they  concern  as  the  laws  passed  by  our  legis- 
latures." But  the  most  telling  answer  went  deeper :  "  In 
proportion  as  the  United  States  assume  a  national  form 
and  national  character,  so  will  the  good  of  the  whole  be 
more  and  more  an  object  of  attention,  and  the  government 
must  be  a  weak  one  indeed,  if  it  should  forget  that  the  good 
of  the  whole  can  only  be  promoted  by  advancing  the  good 
of  each  of  the  parts  which  compose  the  whole."  Having 
no  private  interests  distinct  from  that  of  the  nation,  the 
President  and  the  Senate  would  be  under  no  temptation 
to  imperil  or  neglect  the  nation  by  any  exercise  of  the 
treaty-making  power,  and  the  idea  that  the  President  and 
two-thirds  of  the  Senate  would  be  open  to  corruption  was, 

1  "The  Federalist,"  No.  LXIV. 


THE   UNITED    STATES  59 

he  said,  "  too  gross  and  too  invidious  to  be  entertained. 
But  in  such  a  case,  if  it  should  ever  happen,  the  treaty 
so  obtained  from  us  would,  like  all  other  fraudulent  con- 
tracts, be  null  and  void  by  the  law  of  nations."  ^ 

Hamilton  defended  the  plan  for  utilizing  the  Senate  as 
a  court  for  the  trial  of  impeachments  on  the  ground  of 
economy.^  Some  provision  must  be  made  for  the  trial  of 
impeached  persons,  and  the  question  resolved  itself  into 
a  choice  of  agencies.  The  federal  courts  could  not  be 
used  because  of  the  resulting  confusion  of  judicial  and 
political  functions.  The  House  of  Representatives  could 
not  be  used  because  its  judgments  would  usually  be  par- 
tisan. The  Senate,  consisting  of  men  chosen  for  a  long 
term,  and  therefore  being  of  more  independent  judgment 
than  the  representatives,  presumably  offered  the  fewest 
objections,  and  the  remaining  objections  were  largely 
obviated  by  the  requirement  that  wdiile  sitting  as  a  court 
of  impeachment  the  senators  should  be  under  oath  ;  an 
additional  obligation  which  it  was  believed  would  secure 
the  end  proposed.  The  alternative  was  the  delegation  of 
the  authority  to  some  new  body:  a  course  ruled  out  by 
its  expense.  The  Anti-Federalists'  objections  that  the 
Senate  while  sitting  as  a  court  of  impeachment  might 
yield  to  corruption,  was  answered  as  Jay  answered  an 
earlier  objection,  —  that  the  idea  was  too  gross  to  be 
entertained.  It  will  be  noticed  that  the  main  reliance  of 
the  authors  of  "  The  Federalist  "  for  ability  and  upright- 
ness among  senators  was  on  the  manner  of  their  selection : 
they  were  to  be  picked  men,  chosen  by  the  legislatures; 
therefore,  they  were  likely  to  be  the  ablest  and  most 
desirable  that  could  be  obtained. 

Hamilton,  in  speaking  of  the  mode  of  the  appointment 
of  the  President,  observes  that  it  was  almost  the  only 
part  of  the  system  which  escaped  severe  censure,  and 
which  received  the  slightest  mark  of  approbation  from 
its  opponents.^  Even  Richard  Henry  Lee,  the  most 
aggressive  critic  of  the  Constitution,  declared  that  the 
efection  of  the  President  "  was  properly  secured."  "    The 

1  "  The  Federalist,"  No.  LXIV.  2  id.  No.  LXV. 

8  Id.  No.  LXVIII. 

*  "  Letters  of  a  Federal  Farmer,"  vol.  iii. 


6o       A    CONSTITUTIONAL   HISTORY    OF 

provisions  respecting  the  President  were  the  last  settled 
by  the  federal  convention.  At  one  time,  as  we  know,  this 
part  of  the  problem  seemed  insoluble :  that  the  convention 
thought  of  adjourning,  and  that  finally,  the  matter  was 
settled  by  a  series  of  compromises. 

James  Wilson  wished  to  have  the  President  chosen  by 
direct  popular  vote,  but  this  idea  was  too  novel  in  1787 
to  win  support.  It  was  at  first  proposed  that  the  Presi- 
dent should  be  chosen  by  the  national  legislature ;  then 
a  body  of  special  electors  was  suggested  as  a  means  of 
escape  from  corruption  and  intrigue.  In  the  method  of 
choosing  senators,  pursued  in  Maryland  in  1787,^  the 
convention  found  a  precedent  for  the  method  of  choosing 
the  President  finally  adopted :  namely,  the  choosing  by 
special  electors.  That  both  Federalists  and  Anti-Feder- 
alists approved  of  this  method  shows  plainly  that  the 
idea  of  republican,  or  popular  government  in  America 
in  the  eighteenth  century  differed  widely  from  the  idea 
which  prevails  in  our  day.  The  electoral  college,  as  the 
presidential  electors  are  popularly  called,  has  become 
merely  a  registering  machine,  but  it  stands  for  an  essential 
quality  of  our  national  government ;  namely,  its  federal 
character.  The  President  of  the  United  States  is  chosen 
by  the  people,  voting  by  states ;  that  is,  by  a  federal,  not 
a  national  act.  For  this  reason  the  Anti-Federalists  did 
not  object  to  the  provision  for  presidential  electors. 

In  all  the  ratifying  conventions  which  suggested  amend- 
ments, many  objections  were  made  to  the  powers  of  Con- 
gress. The  substance  of  these  objections  was  that  the 
state  governments  would  be  in  constant  danger  from  the 
federal  government ;  in  other  words,  that  the  so-called 
residuary  sovereignty  of  the  states  would  be  in  danger 
of  being  reduced  to  the  lowest  terms.  The  objections 
were  chiefly  to  the  power  regulating  commerce,  to  the 
power  to  control  elections,  and  to  the  possible  abolition 
of  slavery  by  the  general  government. 

To  all  objections  of  this  character  the  authors  of  "  The 
Federalist  "  gave  answers  more  or  less  explicit :  ^   first, 

1  Under  its  first  constitution  (1776). 

2  "The  Federalist,"  Nos.  LVIII-LXVI. 


THE   UNITED    STATES  6i 

that  the  powers  delegated  to  Congress  were  necessary  to 
the  ends  proposed  by  the  government  itself ;  and  secondly, 
that  the  abuse  of  these  powers  could  speedily  be  corrected 
by  the  people.  The  Anti-Federalist  objections  to  the 
power  of  the  executive  were  answered  in  like  manner.^ 
It  was  shown  that  the  term  of  the  executive  office  is  too 
brief  and  the  limitation  of  his  powers  too  explicit  to 
enable  him  seriously  to  endanger  the  safety  or  the  liberties 
of  the  country.  The  Senate  would  be  a  check  upon  the 
appointing  power.  Congress  itself  could  overrule  the 
veto  and  the  President  could  be  impeached,  convicted,  and 
removed  from  office  for  high  crimes  and  misdemeanors. 

But  the  main  reliance  of  Hamilton,  for  the  excellence 
of  the  proposed  system,  was  on  the  administration  of  the 
government.  "  The  administration  of  government  in  its 
largest  sense,"  says  he,  "  comprehends  all  the  operations 
of  the  body  politic,  whether  legislative,  executive,  or 
judicial;  but  in  its  most  usual  and  perhaps  in  its  most 
precise  signification  it  is  limited  to  executive  details,  and 
falls  peculiarly  within  the  province  of  the  executive  de- 
partment." -  The  chief  thing  to  be  desired  in  adminis- 
tration is  stability,  and  this,  he  thought,  would  be  secured 
by  the  centralization  of  the  executive  authority  in  a  single 
person,  —  the  President,  —  who  would  thus  be  clearly 
marked  as  the  one  man  responsible  for  the  condition  of 
affairs.  Here,  as  in  other  parts  of  the  plan,  the  people 
would  have  every  advantage,  for  the  President  would  be 
of  their  own  choosing. 

Nothing  is  said,  in  "  The  Federalist,"  of  political  par- 
ties ;  their  powerful  influence  and  agency  is  not  even 
anticipated.  No  hint  is  given  that  the  administration  of 
the  government  of  the  United  States  would  fall  under 
the  control  of  such  organizations.  "  The  Federalist  "  dis- 
cusses the  philosophy  of  the  proposed  civil  plan,  and  is 
in  no  sense  a  history  of  American  party  politics.  We 
turn  to  it  for  an  analysis  of  the  principles  on  which  our 
system  of  government  rests,  and  for  the  opinions  of  the 
Fathers  concerning  popular  government.  The  true  test 
of  a  good  government,  continues  Hamilton,  is  its  apti- 

1  "The  Federalist,"  Nos.  LXVII-LXXVII. 
3  Id.  No.  LXXII. 


62       A    CONSTITUTIONAL   HISTORY    OF 

tude  and  tendency  to  produce  a  good  administration.^ 
This  reminds  one  of  Franklin's  remark  made  near  the 
close  of  the  federal  convention,  that  there  is  no  form  of 
government  which  may  not  be  a  blessing  to  the  people  if 
well  administered.  In  America  the  administration  of 
government  has  proved  a  party  affair :  a  matter  depend- 
ing upon  Democrats,  Whigs,  or  Republicans  as  political 
organizations.' 

In  the  old  Confederation,  the  state  governments  pos- 
sessed a  transcendent  advantage  in  the  ordinary  adminis- 
tration of  criminal  and  civil  justice  for  which  the  Articles 
made  no  provision  whatever.  There  were  no  federal 
courts.  Hamilton  remarks  in  "  The  Federalist,"  that  the 
administration  of  justice  "  of  all  others  is  the  most  power- 
ful, most  universal,  and  most  attractive  source  of  popular 
obedience  and  attachment.  It  is  that  which,  being  the 
immediate   and   visible   guardian   of   life   and   property, 

1  "  The  Federalist,"  LXXVI. 

2  Since  "  The  Federalist "  was  written  many  books  have  appeared 
discussing  government  iu  America.  Two  may  be  said  to  have  attained 
the  distinction  of  political  classics  :  De  Tocqueville's  "  Democracy  in 
America,"  1844,  and  Kryce's  "American  Commonwealth,"  18S8.  The 
first  resembled  "  The  Federalist "  in  attributing  the  excellence  and  the 
vitality  of  the  American  system  of  government  to  the  mechanical  arrange- 
ment as  associated  with  the  popular  basis  of  the  system.  It  attributes 
great  importance  to  the  isolation  of  America,  to  the  essentially  religious 
character  of  its  people,  and  to  their  practical  tendencies.  But  De  Tocque- 
ville  sees  more  in  the  people  themselves  than  in  either  their  institutions 
or  their  laws.  Half  a  century  later,  in  the  second  foreign  commentary 
on  our  institutions,  emphasis  is  laid  on  the  power  and  operations  of 
political  parties  rather  than  upon  the  political  system  as  a  philosophical 
idea.  Mr.  Bryce  attributes  more  to  social  conditions  as  a  source  of 
political  power  or  as  adjuncts  to  the  workings  of  political  parties  than  to 
the  elements  of  mechanical  organization  dwelt  upon  so  earnestly  by  the 
authors  of  "The  Federalist."  They  saw  in  the  constitution  of  the 
United  States  little  more  than  a  form  of  legal  compact,  a  fiction  agreed 
upon,  a  scheme  advanced  by  sagacious  men  to  promote  the  general  wel- 
fare. Mr.  Bryce  sees  in  the  system  a  mechanism,  a  political  body,  whose 
parts  and  functions  are  analogous  to  those  of  living  things.  The  three 
descriptions  of  government  in  America,  —  "The  Federalist,"  "Democracy 
in  America,"  and  "The  American  Commonwealth,"  —  seem  at  first  to 
^ave  little  in  common,  but  upon  close  examination  they  are  found  to 
irfccord  with  the  ideas  of  government  prevailing  at  the  times  they  were 
written.  Hamilton,  Mason,  and  Jay  differ  from  De  Tocqueville  and 
Bryce,  because  since  the  days  of  "  The  Federalist  "  men  have  come  to 
realize  that  government  is  not  an  abstraction  but  an  organism,  and  that 
the  so-called  departments  of  government  are  not  mere  arbitrary  divisions 
but  correspond  to  necessary  functions. 


THE   UNITED    STATES  63 

having  its  benefits  and  terrors  in  constant  activity  before 
the  public  eye,  regulates  all  those  personal  interests  and 
familiar  concerns  to  which  the  sensibility  of  individuals  is 
more  immediately  awake,  and  contributes,  more  than  any 
other  circumstance,  to  impressing  upon  the  minds  of  the 
people,  affection,  esteem,  and  reverence  toward  the  gov- 
ernment." ^  He  calls  the  administration  of  justice  "  the 
great  cement  of  society,"  and  attributes  the  weakness  of 
the  old  Confederation  largely  to  its  lack  of  a  federal 
judicial  system. 

Anti-Federalist  objections  to  the  judiciary  were  to  the 
manner  of  its  organization  and  the  probable  extent  of  its 
power.  In  the  eighteenth  century  the  people  were  fa- 
miliar with  the  appointment  of  judges  :  none  were  elected ; 
and  they  were  also  familiar  with  the  life  tenure  of  judi- 
cial offices.  The  unknown  quantity  in  the  judicial  de- 
partment of  the  new  government  was  "  the  partition  of 
the  judicial  authority  between  the  different  courts  and 
their  relation  to  each  other."  ^ 

One  of  the  ends  aimed  at  in  the  Constitution  was  an 
independence  in  the  judiciary  which  could  alone  be  se- 
cured by  tenure  of  office  during  good  behavior  and  by 
fixed  salaries.  These  conserving  elements  are  secured 
by  the  Constitution.  The  Anti-Federalists  objected  to  the 
powers  of  the  proposed  judiciary  because  they  seemed  to 
endanger  the  states  and  to  trespass  on  the  jurisdiction  of 
state  courts.  This  raised  the  whole  question  of  juris- 
diction. In  considering  this  question,  "  The  Federalist  " 
goes  directly  to  the  point :  that  the  purpose  in  organizing 
the  federal  judiciary  is  the  same  as  that  in  organizing  the 
legislative  and  the  executive,  —  the  peace  of  the  Union.^ 
Having  laid  it  down  as  a  principle  that  every  governrnent 
must  possess  the  means  of  executing  its  own  provisions 
by  its  own  authority,  Hamilton  was  led  to  the  necessary 
conclusion,  "  That  in  order  to  secure  the  inviolable  main- 
tenance of  that  equality  of  privileges  and  immunities  to 

1  "The  Federalist,"  No.  XVII. 

2  Id.  Nos.  LXXVIII,  LXXIX. 

'  Id.  No.  LXXX.  Hamilton  in  this  number  calls  the  Union  the  Con- 
federacy, a  term  in  common  use  at  the  time  and  continued  until  the  time 
of  the  civil  war. 


64       A    CONSTITUTIONAL    HISTORY    OF 

which  the  citizens  of  the  Union  will  be  entitled,  the 
national  judiciary  ought  to  preside  in  all  cases  in  which 
one  state  or  its  citizens  are  opposed  to  another  state  or  its 
citizens.  To  secure  the  full  effect  of  so  fundamental  a 
provision  against  evasion  and  subterfuge,  it  is  necessary 
that  its  construction  should  be  committed  to  that  tribunal 
which,  having  no  local  attachment,  will  be  likely  to  be 
impartial  between  the  different  states  and  their  citizens, 
and  which,  owing  its  official  existence  to  the  Union,  \vill 
never  be  likely  to  feel  any  bias  inauspicious  to  the  prin- 
ciples on  which  it  is  founded."  ^  Many  cases  must  arise 
in  the  settlement  of  which  the  state  courts  cannot  be 
expected  to  be  impartial.  The  federal  courts  are  the 
proper  tribunals  for  determining  controversies  which  may 
arise  between  different  states  and  their  citizens.- 

Some  of  the  Anti-Federalists  objected  to  vesting  the 
judicial  power  in  one  supreme  court  of  final  jurisdiction. 
They  preferred  to  vest  it  in  a  branch  of  the  legislature, 
and  notably  in  the  Senate :  a  confusion  of  legislative  and 
judicial  functions  which  Hamilton  was  quick  to  point 
out.  They  asserted  that  if  the  federal  courts  were  to  be 
allowed  to  construe  the  laws  according  to  the  spirit  of  the 
Constitution,  they  would  mould  them  into  whatever  shape 
they  might  think  proper;  to  which  objection  Hamilton 
replied  that  there  was  not  a  syllable  in  the  plan  "  which 
directly  empowers  the  national  courts  to  construe  the 
laws  according  to  the  spirit  of  the  Constitution,  or  which 
gives  them  any  greater  latitude  in  this  respect  than  may 
be  claimed  by  the  courts  of  every  state."  ^  This  conclu- 
sion he  arrived  at  from  his  understanding  of  the  general 
theory  of  a  limited  constitution  applicable  alike  to  the 
government  of  the  nation  and  to  that  of  each  state. 

Another  Anti-Federalist  objection  was  to  the  possible 
encroachment  of  the  federal  courts  on  legislative  author- 
ity, —  a  fear  which  Hamilton  pronounced  to  be  "  in 
reality  a  phantom."  No  encroachment  was  possible  which 
could  in  any  sensible  degree  affect  the  order  of  the  politi- 

1  "The  Federalist,"  No.  LXXX. 

2  The  extent  of  the  judicial  power  of  the  United  States  is  explicitly 
declared  in  the  Constitution,  Article  III. 

8  "The  Federalist,"  No.  LXXXI. 


THE   UNITED    STATES  65 

cal  system ;  a  conclusion  to  which  he  arrived  after  con- 
sidering "  the  general  nature  of  the  judicial  power,  the 
objects  to  which  it  relates,  the  manner  in  which  it  is  exer- 
cised, its  comparative  weakness,  and  its  total  incapacity 
to  support  its  usurpations  by  force."  The  power  of  insti- 
tuting impeachments  was  a  complete  security;  the  judges 
could  not  possibly  encroach  upon  legislative  authority. 

But  the  opponents  of  the  plan  objected  to  the  pro- 
visions for  inferior  courts,  declaring  that  they  were  super- 
fluous, and  that  the  duties  imposed  upon  them  could  be 
as  well,  or  better,  performed  by  the  state  tribunals.  To 
this  objection  the  answer  was  as  before,  —  the  purpose  of 
the  framers  of  the  Constitution  to  avoid  local  prejudices 
and  partisanship.  State  judges  holding  their  office  dur- 
ing pleasure,  or  for  a  brief  period,  would  not  be  sufficiently 
independent  to  be  relied  upon  for  an  inflexible  execution 
of  national  law. 

Another  objection  which  created  much  alarm  in  the 
Virginia  ratifying  convention  was  that  a  state  might  be 
sued  by  an  individual  in  a  federal  court.  This  objection 
raised  the  great  question  of  sovereignty,  and  on  this  sub- 
ject Hamilton  said :  "  An  entire  consolidation  of  the 
states  into  one  complete  national  sovereignty  would  imply 
an  entire  subordination  of  the  parts ;  and  whatever 
powers  may  remain  in  them  would  be  altogether  depend- 
ent on  the  general  will.  But  as  the  plan  of  the  convention 
aims  only  at  a  partial  union  or  consolidation,  the  state 
governments  would  clearly  retain  all  the  rights  of  sover- 
eignty which  they  before  had  and  which  were  not  by  that 
act  exclusively  delegated  to  the  United  States."  ^ 

He  applied^  this  doctrine  in  his  answer  to  those  who 
objected  to  the  judicial  Article,  —  that  it  authorized  a 
suit  to  be  brought  against  a  state  without  its  consent. 
"It  is  inherent  "in  the  nature  of  sovereignty  not  to  be 
amenable  to  the  suit  of  an  individual  without  its  consent. 
This  is  the  general  senSe  and  the  general  practice  of  man- 
kind;  and  the  exemption,  as  one  of  the  attributes  of 
sovereignty,  is  now  enjoyed  by  the  government  of  every 
state   in   the   Union."  ^     He   concluded,    therefore,   that 

1  "The  Federalist,"  No.  XXXII.  «  Id.  No.  LXXXI. 

5 


66       A    CONSTITUTIONAL   HISTORY    OF 

unless  a  state  should  surrender  its  sovereignty,  the  danger 
asserted  by  the  Anti-Federalists  was  purely  imaginary. 
He  could  see  no  purpose  whatever  in  authorizing  suits 
against  a  state  for  the  debts  it  might  owe  an  individual, 
because  a  recovery  of  the  debt  by  a  decision  of  the  court 
could  not  be  enforced  by  the  state;  and  here  he  left  the 
whole  matter.  His  opinion  was  not  sustained  later  by 
the  supreme  court/  but  was  sustained  by  the  eleventh 
amendment  to  the  Constitution,  ratified  in  1798.^ 

To  the  objection  that  the  federal  courts  might  tran- 
scend their  authority,  Hamilton  replied  that  the  judi- 
cial authority  of  the  United  States,  as  declared  by  the 
Constitution,  was  particularly  specified;  that  its  jurisdic- 
tion was  limited  by  the  terms  of  the  instrument,  and  that 
there  could  be  no  invasion  of  the  rights  of  the  states.^ 
It  must  be  remembered  that  "The  Federalist"  was  written 
before  the  first  ten  amendments  were  adopted,  one  of 
which,  —  the  seventh,  —  is  an  explicit  provision  for  trial 
by  jury;  and  another,  —  the  fifth,  —  is  equally  explicit 
in  the  trial  of  criminal  cases.  These  two  amendments 
answer  nearly  every  serious  objection  advanced  by  the 
Anti-Federalists  to  the  Constitution  when  it  was  before 
the  ratifying  conventions.  The  able  argument  made  by 
Hamilton  in  "  The  Federalist,"  that  the  Constitution  in 
its  original  form  did  not  abolish  or  diminish  the  right  of 
trial  by  jury,  was  not  accepted  by  the  country  as  final. 
The  Constitution  left  too  much  to  implication  ;  the  ancient 
right  of  trial  by  jury  must  be  declared  in  direct  terms. 
For  this  reason  the  seventh  amendment  was  demanded 
and  added. 

Equally  ineffective  with  the  argument  in  defence  of  the 
omission  to  provide  for  jury  trials  was  the  argument  of 
"  The  Federalist,"  advanced  to  meet  one  of  the  most 
serious  accusations  against  the  Constitution.  —  that  it 
contained  no  bill  of  rights.  Hamilton  asserted  that  the 
Constitution  itself  was  a  bill  of  rights,  and  that  in  omitting 
a  bill  in  the  ancient  form  it  left  out  no  more  than  did 
some  of  the  state  constitutions."    In  vain  did  he  argue  that 

1  Tn  Chisholm  v.  Georgia,  4  Dallas  (1793).  ^  See  pp.  105,  106. 

3  "  The  Federalist,"  No.  LXXXII.  *  Id.No.  LXXXIV. 


THE   UNITED    STATES  67 

a  minute  detail  of  particular  rights  was  less  applicable 
to  a  national  system  of  government  than  to  a  system 
intended  for  a  single  state.  In  his  opinion  the  constitu- 
tion of  each  state  was  a  bill  of  rights  to  the  national  Con- 
stitution and  the  Constitution  would  be  the  Bill  of  Rights 
of  the  Union.  This  opinion  was  almost  universally  re- 
jected. James  Wilson  indeed  held  it,  but  the  public  was 
not  convinced.  The  opposition  may  be  said  to  have  dic- 
tated the  seventh  amendment. 

While  Hamilton  was  writing  the  last  numbers  of  "  The 
Federalist,"  Virginia  and  New  York  were  holding  their 
ratifying  conventions.  Virginia  sent  up  a  bill  of  rights 
in  twenty  articles,  and  New  York  another  in  thirty-two. 
A  few  months  later,  North  Carolina  demanded  a  bill  in 
twenty  articles.  The  action  of  these  states  fairly  reflected 
Anti-Federalist  sentiments  on  the  subject  of  guarantee- 
ing, in  the  new  Constitution,  the  ancient  and  undoubted 
rights  commonly  expressed  in  the  bill  of  rights  in  the 
state  constitutions.  Rhode  Island,  which  assembled  in 
convention  after  the  Constitution  had  been  ratified  and 
the  new  government  inaugurated,  adopted  a  bill  of  rights 
in  twenty-one  articles,  and  the  Anti-Federalists  in  Penn- 
sylvania, long  before  Hamilton's  number  on  the  judiciary 
was  written  in  "  The  Federalist,"  had  adopted,  at  Harris- 
burg,  a  bill  of  rights  in  fourteen  articles.  These  five 
bills  of  rights,  in  ninety-three  articles,  constituted  the 
quarry  out  of  which  Madison  took  the  amendments  ulti- 
mately adopted  as  the  first  ten.  But  at  the  time  Hamilton 
wrote  his  opinion,  in  "  The  Federalist,"  that  the  Constitu- 
tion was  itself  a  bill  of  rights,  he  had  no  alternative. 
He  felt  that  the  Constitution  must  be  defended  as  it  left 
the  hands  of  its  makers. 

In  summing  the  teachings  of  this  classic  exposition, 
"The  Federalist,"  it  is  well  to  keep  constantly  in  mind 
that  its  purpose  was  to  show  the  utility  of  the  Union  as 
embodied  in  the  plan  of  government  which  we  call  the 
Constitution  of  the  United  States,  and  that  this  Constitu- 
tion conforms  to  republican  principles. 

If  it  be  asked.  Where  may  a  statement  of  these  prin- 
ciples be  found?  "  The  FederaHst  "  answers:  in  the  state 
constitutions.     In  these  the  principles  of  republican  gov- 


68       A    CONSTITUTIONAL   HISTORY    OF 

ernment  were  formulated  before  the  national  plan  of 
government  was  proposed.  The  several  bills  of  rights  in 
these  earlier  instruments  declare  briefly  the  political  ver- 
ities upon  which  popular  government  is  founded.  But 
these  bills  do  not  include  the  federal  principles :  these 
the  authors  of  "  The  Federalist  "  deduced  from  the  struc- 
ture and  operation  of  the  confederations  known  to  history, 
—  and  chiefly  those  of  Greece  and  Holland. 

It  was  not,  however,  upon  the  principles  disclosed  in 
these  confederacies,  that  the  authors  of  "  The  Federalist " 
relied  for  their  principal  support  of  the  plan  which  they 
were  urging  upon  the  American  people ;  rather  did  they 
depend  upon  the  plain  analogy  of  the  proposed  plan  than 
upon  the  practically  uniform  plan  in  the  state  constitutions. 
With  these  the  people  were  satisfied,  for  they  believed  that 
under  the  protection  of  these  organic  laws,  their  rights 
were  safe. 

It  becomes  necessary,  therefore,  if  one  would  under- 
stand the  various  stages  in  the  growth  of  popular  govern- 
ment in  America,  to  examine  the  state  constitutions  in 
force  at  the  time  when  the  national  government  was 
formed. 


THE    UNITED    STATES  69 


CHAPTER   V 

THE   COMMONWEALTHS 

More  than  ten  years  before  the  national  Constitution  was 
framed,  or  "  The  FederaHst  "  was  written,  the  people  of 
the  thirteen  colonies  transformed  them  into  states,  and 
save  in  Rhode  Island  and  Connecticut  organized  them 
under  written  constitutions.  The  two  New  England  states 
which  thus  continued  their  civil  organizations  under  their 
ancient  charters,  possessed  in  them  a  working,  written, 
organic  law,  which  required  no  change  when  the  civil 
affairs  of  these  states  were  adjusted  to  the  new  order  of 
things.  Rhode  Island,  on  May  4th,  and  Connecticut,  on 
October  10,  1776,  by  act  of  assembly,  declared  that  the 
colonial  order  had  ended  and  that  colony  had  become 
commonwealth.^  Meanwhile  other  colonies  had  acted  or 
were  acting,  and  by  1780  were  organized  under  written 
constitutions. 

Vermont,  though  not  recognized  by  Congress  as  a  state 
until  its  admission  into  the  Union  in  1791,  had  at  that 
time  been  organized  under  a  written  constitution  fifteen 
years.  Kentucky,  admitted  in  1792,  and  Tennessee,  ad- 
mitted in  1796,  followed,  in  their  constitutional  organiza- 
tion, —  the  one,  that  of  Virginia ;  the  other,  that  of 
North  Carolina.  By  1800,  the  sixteen  states  had  framed 
and  adopted  twenty-six  constitutions,  all  conforming  to 
republican  principles,  as  these  were  understood  at  the 
time.^ 

The  men,  some  seventeen  hundred  in  number,  who 
framed  these  constitutions,  included  many  of  the  most 
eminent  in  the  country :  among  them,  Jefferson,  Franklin, 

1  The  charter,  in  Connecticut,  was  supplanted  by  the  constitution  of 
1818 ;  that  in  Rhode  Island  by  the  constitution  of  1842. 

2  For  the  list  of  state  constitutions  and  dates  of  their  adoption, 
see  p.  301    (note). 


70       A   CONSTITUTIONAL   HISTORY    OF 

John  Adams,  Jay,  Gouverneur  Morris,  James  Wilson, 
Chancellor  Wythe,  Witherspoon,  Read,  Richard  Caswell, 
George  Nicholas,  John  Breckenridge,  and  Charles  Mc- 
Clurg.  The  state  constitutions  reflect  more  perfectly  than 
does  the  Constitution  of  the  United  States  the  theories  of 
government  which  prevailed  in  America  during  the  clos- 
ing years  of  the  eighteenth  century.  In  "  The  Federalist  " 
we  find  the  classic  exposition  of  principles  on  which  the 
American  system  of  government  rests.  In  that  work,  as 
we  have  already  seen,  much  is  said  of  the  state  govern- 
ments. Indeed  the  purpose  in  writing  "  The  Federalist " 
was  to  show  that  the  proposed  federal  government  con- 
formed to  the  principles  on  which  the  state  governments 
were  founded.  The  national  and  the  state  instruments 
were  therefore  in  harmony :  the  one,  applying  republican 
principles  in  a  general  way,  for  the  welfare  of  the  whole ; 
the  others,  applying  these  principles  in  particular  ways 
for  local  purposes. 

The  state  was  conceived  as  a  social  compact ;  typically 
set  forth  in  the  Massachusetts  constitution;  formed  for 
the  security  of  the  natural  rights  of  men ;  typically  ex- 
pressed in  the  constitution  of  Virginia.  The  state  was 
conceived  to  exist  for  the  benefit  of  the  individual,  and 
individualism  found  expression  in  the  words,  "  All  men 
are  created  equal."  The  thought  behind  these  words  was 
the  source  of  the  revolt  against  feudalism.  Out  of  the 
effort  to  formulate  a  new  theory  of  the  state  grew  the 
bills  of  rights  which  form  the  preambles  to  the  state 
constitutions :  a  body  of  propositions,  of  which  that  in 
the  Virginia  constitution  of  1776  is  a  type,  formulating 
the  political  dogmas  of  the  age.  These  bills  of  rights 
are  the  guarantees  of  the  individual.  The  state  exists 
for  his  benefit. 

The  popular  objection  to  the  national  Constitution,  as 
it  came  from  the  hands  of  its  framers,  was  to  its  lack  of 
a  bill  of  rights :  an  indication  of  the  importance  attached 
to  such  a  declaration ;  and  the  Constitution  was  ratified 
with  the  understanding  that  amendments,  in  the  nature 
of  a  bill  of  rights,  would  promptly  be  made.^    This  insis- 

^  See  clia]).  vi. 


THE    UNITED    STATES  71 

tence  on  the  recognition,  in  the  national  instrument,  of 
the  fundamental  rights  of  the  individual  citizen  is  the  best 
evidence  we  have  of  the  kind  of  government  which  the 
American  people  established  in  the  eighteenth  century. 
Each  clause  in  a  bill  of  rights  in  a  state  constitution  is  a 
survival  of  numberless  attempts  to  formulate  a  permanent 
civil  policy,  and  erribodies  the  result  of  a  long  struggle. 
Indeed,  a  declaration  of  rights  is  an  epitome  of  political 
history.  To  trace  through  the  centuries  the  history  of 
one  of  these  propositions,  for  example,  that  on  the  right 
to  bear  arms,  —  or  on  trial  by  jury,  —  or  on  the  right  of 
revolution,  leads  the  mind  back  to  the  beginnings  of 
constitutional  government.  Magna  Charta,^  the  Petition 
of  Rights,'  the  English  Bill  of  Rights,^  and  the  American 
constitutions  *  mark  off  epochs  in  the  evolution  of  consti- 
tutional government. 

But  the  state  constitutions  went  farther ;  they  laid 
down  the  limits  of  power.  As  working  models,  this  was 
their  supreme  feature.  They  were  the  first  written  plans 
of  government,  made  by  the  people.  They  were  the  first, 
in  history,  which  actually  worked.  The  constitution  of 
Massachusetts  is  the  oldest  written  constitution  now  in 
force.  Amendment  has  not  altered  its  fundamental 
character.  Yet  this  organic  law  dates  back  no  farther 
than  1780.  This  suggests  that  the  age  of  written  con- 
stitutions is  recent. 

The  first  state  constitutions  were  made  by  conventions, 
or  by  legislatures  acting  as  conventions,  and,  with  few 
exceptions,  were  promulgated.  The  earliest  ones  were 
revolutionary,  and  imperfect,  because  hastily  made. 
Hence  the  adoption  of  new  constitutions  by  most  of  the 
states  before  1800.  Change  or  amendment  was  de- 
manded, because  the  first  constitutions  did  not  sufficiently 
limit  the  powers  granted  by  the  people ;  or  did  not  clearly 
define  the  functions  of  the  three  departments,  —  legisla- 
tive, executive,  and  judicial,  —  or  did  not  specify  the 
terms,  duties,  emoluments,  and  manner  of  choosing 
public  officials.  In  other  words,  the  older  instruments 
were  lacking  in  administrative  detail ;    that  is,  in  local 

1  1215.  2  1628.  8  1689.  i  1776. 


72       A   CONSTITUTIONAL   HISTORY   OF 

fitness.  The  bills  of  rights  were  not  changed,  save  by  the 
addition,  here  and  there  of  provisions,  which,  in  the  heat 
of  the  moment,  were  thought  to  embody  permanent  in- 
terests ;  as,  for  example,  the  provision  respecting  bound- 
aries, in  the  constitution  of  Vermont,  which  state  was 
involved  in  a  bitter  boundary  controversy  with  its  neigh- 
bors. Other  temporary  provisions  'occur  in  the  early 
bills  of  rights.^  Constitutional  conventions  have  been 
prone  to  insert  in  bills  of  rights,  the  most  stable  part 
of  a  constitution,  provisions  of  only  temporary  interest, 
but  advocated  strenuously  at  the  time  by  the  dominant 
political  party.  Usually,  these  provisions  are  dropped 
by  later  conventions.  He  who  will  read  with  care  the 
bills  of  rights  in  our  state  constitutions  will  discover  that 
their  essential  character  is  derived  from  their  recognition 
of  two  doctrines :  that  of  the  social  compact,  and  that 
of  the  natural  rights  of  individuals. 

The  American  bills  of  rights  are  suggestively  silent 
concerning  sovereignty.  Save  the  reference  to  it  in  an- 
other article  of  the  constitutions  of  Massachusetts  ( 1780) 
and  of  New  Hampshire  (1784),  which  declares  the  rela- 
tion of  the  state  to  the  Confederation,  the  subject  is  not 
mentioned.  Looking  backward,  we  can  see  how  the  true 
concept  of  sovereignty  must  be  worked  out  by  events,  by 
the  actual  administration  of  affairs.  No  definition  of  sov- 
ereignty, made  in  the  eighteenth  century,  would  have  sat- 
isfied the  social  and  political  conditions  of  the  nineteenth. 
The  unwritten  constitutions  of  the  states ;  the  sentiments 
and  political  opinions  of  the  people,  a  knowledge  of  which 
we  derive  from  the  writings,  the  correspondence,  and  the 
political  history  of  the  time,  prove  that  the  prevailing 
belief  was  in  the  "  freedom,  independence,  and  sover- 
eignty "  of  each  state.  The  federal  government  was 
looked  upon  by  the  majority  of  the  people  as  the  agent 
of  the  states,  —  indeed,  as  their  creation.  In  the  eight- 
eenth century,  the  governments  of  the  states,  as  Hamilton 
declares  in  "  The  Federalist,"  held  first  place  in  the  affec- 
tions of  the  people.  The  national  sentiments  which  now 
cluster  around  the  United  States  government  were  un- 

1  See  the  first  constitutions  of  Pennsylvania  and  Tennessee. 


THE   UNITED    STATES  73 

known.  The  change  which  time  has  wrought  is  best 
illustrated  by  the  clause  in  the  bill  of  rights  of  the  con- 
stitution of  Mississippi  of  1890,  which  declares  that  the 
supreme  allegiance  of  the  citizen  is  due  to  the  government 
of  the  United  States.^  No  such  idea  is  suggested  in  any 
state  constitution  of  the  eighteenth  century.  State  sover- 
eignty was  unwritten  law  then  as  national  sovereignty  is 
now.^  The  popular  concept  of  the  national  government 
in  the  eighteenth  century  may  best  be  learned  in  the 
history  of  the  alien  and  sedition  acts,  and  that  of  the 
Virginia  and  Kentucky  resolutions.  That  concept  is  ex- 
pressed in  the  oft-used  description  of  the  general  govern- 
ment, as  one  of  "  delegated  powers,"  and  the  majority 
believed  that  these  powers  were  delegated  by  the  states.^ 

After  stating,  in  constitutional  form,  the  political 
dogmas  of  the  age,  the  authors  of  these  eighteenth  cen- 
tury instruments  set  forth  the  scope  and  powers  of  the 
three  departments  of  government,  —  legislative,  execu- 
tive, and  judicial,  —  with  manifest  desire  to  co-ordinate 
them,  yet  so  to  separate  them  that  neither  should  perform 
the  functions  of  the  other.  This  effort  to  separate  the 
three  departments  is  well  illustrated  in  the  constitution  of 
Massachusetts,  1780,  and  that  of  Kentucky,  1792.  The 
separation  in  each  state  was  incomplete. 

English  constitutional  history  consists  chiefly  in  the 
history  of  the  struggle  of  the  legislature  with  the  crown, 
and  notably  the  struggle  of  the  House  of  Commons. 
That  organ  of  government  which  controls  the  purse  and 
the  sword  of  the  nation  is  most  vital  to  national  existence. 
At  the  time  of  the  American  revolution,  Parliament  had 
won  in  the  long  contest  with  the  crown ;  therefore.  Eng- 
lishmen in  America  naturally  conceived  of  the  legislative 

1  Compare  the  constitutions  of  Maryland  and  Nevada,  1864. 

^  Justice  Wilson's  decision  in  Chisholm  7'.  Georgia  (1793),  2  Dallas, 
419,  and  Chief-Justice  Jay's  decision,  in  this  case,  cannot  be  said  to 
reflect  public  opinion  at  the  time.  The  people  did  not  yet  comprehend 
nationality,  as  thus  early  defined  by  the  supreme  court.      See  chap,  v, 

PP-  72.  73- 

'  For  a  detailed  account  of  the  subject  "  sovereignty,"  see  Thorpe  s 
"Constitutional  History  of  the  American  People,  1776-1850,"  vol.  i, 
chap  i,  "  The  First  Struggle  for  Sovereignty " ;  and  for  the  growth  of 
the  idea  of  national  sovereignty,  see  the  same  author's  "Constitutional 
History  of  the  United  States,  1765-1895."     3  \o\%.  passim. 


74       A   CONSTITUTIONAL    HISTORY    OF 

as  the  most  important  department  or  function  of  the  state, 
and,  when  they  came  to  formulate  written  constitutions, 
they  made  the  legislature  the  nucleus  or  centre  of  the  civil 
system.  They  granted  power  to  the  legislature  in  general 
terms,  with  no  thought  of  forbidding  that  which  in  later 
times  came  to  be  called  special  legislation.  The  colonial 
idea  was  of  frequent  elections  and  short  terms  for  mem- 
bers of  assembly,  and  the  spirit  of  the  revolution  accented 
the  idea.  The  colonial  organization,  —  governor,  execu- 
tive council,  assembly,  and  an  appointed  judiciary,  —  was 
easily  perpetuated ;  the  council  being  transformed  into 
an  upper  House,  which,  after  the  British  prototype,  — • 
the  House  of  Lords,  —  was  organized  so  as  to  secure 
greater  permanency  than  the  assembly.  This  was  ob- 
tained by  prescribing  a  longer  term,  and  more  exacting 
qualifications  than  those  required  of  members  of  assembly. 
The  senator  must  be  an  older  man ;  possessing  a  larger 
estate  and  having  a  longer  residence  in  the  community 
than  the  assemblyman.  The  eighteenth  century  idea  of 
the  state,  —  that  it  rests  on  property  and  on  persons,  — 
was  carried  out  in  the  organization  of  the  legislature ;  the 
Senate  representing  property,  the  assembly  representing 
persons. 

The  British  model  was  further  followed  by  giving  the 
assembly  the  power  to  impeach,  and  the  exclusive  power 
to  originate  money  bills.  In  the  three  states  in  which  for 
a  time  the  single  legislature,  or  unicameral  system,  was 
tried,  there  were  repeated  demands  for  the  bicameral  sys- 
tem, as  the  only  means  of  preserving  those  "  checks  and 
balances  "  which  maintain  the  civil  equilibrium.^ 

The  basis  of  representation  was  white  persons,^  and 
the  suffrage  was  limited  to  white  males,  except  in  New 
Hampshire,  Vermont,  Massachusetts,  North  Carolina, 
Tennessee,  and  New  Jersey ;   in  which  states  free  men  of 

1  Pennsylvania  had  the  unicameral  system,  1776-1790;  Georgia, 
1777-17S9;'  Vermont,  1 776-1836.  The  defects  of  the  system  were  set 
forth  bv  the  Pennsylvania  Council  of  Censors  (see  "  Proceedings  Rela- 
tive to  Calling"),  the  Conventions  of  1776  and  1790,  Ilarrisburg,  1S25; 
also  the  manv  reports  of  the  Vermont  Council  of  Censors,  whose  elabo- 
rate statements  seem  trite. 

2  Georgia  based  representation  on  the  federal  number ;  constitution, 
1798. 


THE    UNITED    STATES  75 

color,  duly  qualified  by  age,  residence,  property,  and 
religious  belief,  might  vote  by  the  letter  of  the  Constitu- 
tion. For  a  time  women  voted  in  New  Jersey  (1776- 
1807),  the  term  "  inhabitants,"  which  defined  the  votes  in 
that  state,  including  them.  But  white  men  only  were 
elected  to  office. 

Of  the  candidate  for  office  and  the  office-holder,  more 
exacting  qualifications  were  demanded  than  of  the  voter; 
and  chiefly  a  larger  holding  of  real  estate,  a  longer  resi- 
dence in  the  community,  and  of  the  candidate  for  gov- 
ernor, or  for  the  Senate,  an  age  greater  than  twenty-one 
years. 

But  the  first  constitutions,  —  and  they  embodied  more 
liberal  ideas  than  the  colonial  practices  which  preceded 
them,  —  were  scarcely  in  force  before  demands  for  a 
yet  more  liberal  system  were  heard.  Democracy  protested 
against  religious  and  property  qualifications  and  long 
terms  of  residence  for  the  voter.  It  protested,  as  in  Ten- 
nessee, and  later  in  Massachusetts,  against  the  property 
basis  of  government,  and  in  the  former  it  won  its  first 
victory  when,  in  the  new  constitution  of  1796,  it  suc- 
ceeded in  providing  that  a  money  bill  might  be  originated 
in  either  House,  —  an  innovation  which  many  states  have 
since  followed.  When  the  eighteenth  century  closed, 
democracy  had  so  changed  and  amended  the  earlier  con- 
stitutions that,  speaking  of  the  commonwealths  in  the 
aggregate,  only  vestiges  remained  of  the  religious  and 
property  qualifications  for  the  elector  which  had  been 
prescribed  in  1776.  But  the  new  or  amended  constitu- 
tions, like  the  old  ones,  were  confessions  of  faith  in  the 
wisdom  and  integrity  of  legislatures.  In  this  respect  the 
first  state  constitutions  remind  one  of  the  faith  of  child- 
hood. One  smiles  at  the  suggestion  that  the  state  can 
be  kept  in  health  and  order  merely  by  granting  general 
powers  to  the  legislature :  its  members  of  assembly 
chosen  annually,  its  senators  at  least  every  two  years. 
This  primitive  confidence  in  the  mere  mechanics  of  gov- 
ernment is  analogous  to  that  so  elaborately  explained  in 
"The  Federalist."  The  system  was  everything.  '"Let  the 
government  be  one  of  laws,  rather  than  of  men,"  was  the 
confident  desire  of  Americans  in  the  eighteenth  century. 


76       A    CONSTITUTIONAL   HISTORY    OF 

Therefore  the  legislature  was  made  the  centre  of  the  civil 
system. 

Far  dififerent  was  the  attitude  of  the  people  toward  the 
governors.  Confidence  in  the  legislative  was  counterbal- 
anced by  distrust  of  the  executive,  —  a  condition  of 
affairs  brought  about  by  the  spirit  of  the  revolution.  The 
constitutional  defence  of  the  revolution,  in  the  American 
mind,  was  based  on  the  King's  infraction  of  the  social 
compact.  Otis  gave  the  thought  voice  when  he  argued 
against  the  writs  of  assistance,  and  the  authors  of  the 
constitution  of  New  Jersey  in  the  preamble  to  that  organic 
act  plainly  pronounced  the  King  a  law-breaker.^  Colonial 
governors  for  more  than  a  hundred  years  had  been  in 
ceaseless  altercation  with  colonial  assemblies,  and  the 
people  had  ever  sided  with  the  assemblies  against  the 
King's  man. 

In  organizing  the  executive  the  authors  of  the  early 
constitutions  gave  free  rein  to  this  hostile  spirit  of  dis- 
trust and  granted  to  governors  only  limited  powers,  for 
short  periods  of  time.  Annual  elections,  such  as  pre- 
vailed in  New  England,  were  supposed  to  prevent  in- 
numerable evils,  and  the  exacting  qualifications  which 
hedged  the  executive  ofifice  about,  were  considered  a  sure 
defence  against  the  candidacy  of  incapable  and  unworthy 
men.  The  people  of  South  Carolina  exacted  ten  years" 
residence  in  the  state,  a  clear,  settled  freehold  worth 
£1500,  belief  in  the  Protestant  faith,  and  the  age  of  thirty 
years  of  the  man  whom  they  elected  governor ;  and  they 
gave  him  a  term  of  only  two  years,  and  made  him  ineli- 
gible for  a  second  term  till  four  years  had  passed.-  New 
Hampshire,  Massachusetts,  and  Pennsylvania  required  a 
residence  of  seven  years ;  Georgia,  of  six  ;  Maryland  and 
North  Carolina,  of  five.  Ten  of  the  constitutions  pre- 
scribed a  property-qualification  varying  from  five  hun- 
dred acres  to  £5000,  and  in  states  which  prescribed  no 
property  qualification,  —  Vermont,  Delaware,  and  Ken- 
tucky, —  the  well-established  custom  was  to  elect  as  gov- 
ernors only  men  of  known  wealth  and  position.     Equally 

^  New  Jersev,  1776. 

2  Constitution,  1790;  that  of  1778  required  ;,^io,ooo  freehold. 


THE   UNITED   STATES  yy 

exacting  in  letter,  if  not  in  spirit,  was  the  requirement  of 
belief  in  the  Protestant  religion  which  eight  of  the  con- 
stitutions demanded ;  ^  and  the  term  "  Christian,"  used 
in  two  others,^  meant  Protestant.  But  long  before  these 
religious  requirements  were  omitted  in  new  constitu- 
tions, they  became  unpopular,  and  at  least  in  one  state. 
North  Carolina,  were  ignored.^  The  change  cannot  be 
said  to  have  come  over  the  public  mind  until  the  nine- 
teenth century  was  in  its  second  decade. 

The  governor  was  popularly  conceived  to  be  a  military 
man,  —  at  least,  ex  ofhcio,  —  and  his  civil  duties  were 
merely  "  to  execute  the  laws."  His  power  of  appointment 
was  limited,  and  there  were  few  offices  to  be  filled.  Not 
all  the  constitutions  gave  him  the  veto  power,  but,  some- 
what paradoxically,  much  importance  was  attached  to  his 
messages,  which  formed  important  contributions  to  the 
newspapers  of  the  day.  They  remain  an  instructive 
record  of  public  events.*  The  constitutions  provided  for 
filling  vacancies  in  the  executive  office,  as  in  New  York, 
by  the  accession  of  the  lieutenant-governor,^  which  may 
have  been  the  precedent  for  a  similar  provision  in  the 
national  Constitution.  But  most  of  the  states  had  cum- 
bersome plans  for  the  succession. °  No  change  in  our 
state  governments  is  more  notable  than  that  in  the  execu- 
tive department.  The  rigorous  use  of  the  veto  power  — 
the  activity  of  the  governor  in  filling  offices,  his  political 
influence  in  legislation,  and,  in  some  states,  his  power  to 
veto  or  to  cut  down  items  of  expenditure  —  suggest  how 
widely  different  is  our  conception  of  the  executive  from 
that  of  our  ancestors.  Their  idea  of  a  governor  was  of 
an  official  whose  powers  were  few  and  limited. 

The  state  judiciary  at  first  was  the  colonial  system  in 
new  hands.    English  precedents  and  practice  yielded  but 

1  New  Hampshire,  1776,  1784,  1792;  Vermont,  1777;  New  Jersey, 
1776:  Pennsvlvania,  1776;  North  Carolina,  1776;  South  Carolina,  1790. 

2  Massachusetts,  1780;  Maryland,  1776. 

3  See  the  debate  on  eliminating  the  word  "  Protestant "  from  the  consti- 
tution, North  Carolina,  iS-^S. 

*  Niles's  Register,  which  began  during  the  second  decade  of  the  nine" 
teenth  century,  regularly  published  the  governors'  messages. 
5  Constitution,  1777. 
^  Delaware,  1792  ;  South  Carolina,  1778,  1790,  and  others. 


78       A    CONSTITUTIONAL   HISTORY    OF 

slowly  to  the  spirit  of  democracy,  — "  the  levelling 
spirit,"  as  the  Tories  and  High  Federalists  were  wont  to 
call  it.  The  common  law  forms  were  adhered  to,  with  no 
thought  of  change.  Save  on  the  frontier,  where  the 
courts  were  usually  composed  of  men  not  learned  in  the 
law,  there  was  little  to  indicate  any  change  from  colonial 
times  in  the  administration  of  justice.  Most  notable  was 
the  separation  of  legislative  and  judicial  functions  by  the 
elimination  of  the  executive  council  as  a  court  of  appeal, 
and  by  the  organization  of  courts  of  last  resort.  Much 
complaint  was  heard  at  the  time  the  revolution  broke  out, 
of  "  the  law's  delay  and  the  insolence  of  justice,"  and 
that  that  complaint  was  well-founded  is  attested  by  no  less 
authority  than  the  Declaration  of  Independence. 

The  authors  of  the  first  constitutions  attempted  to 
remedy  public  evils  by  simplifying  legal  processes ;  by 
organizing  courts  of  various  jurisdiction,  by  removing 
judges  wholly  from  participation  in  other  than  judicial 
business,  and,  by  adopting  a  system  which,  in  its  working, 
would  hasten  litigation  to  an  end,  and  make  the  adminis- 
tration of  justice  accessible  to  all. 

Yet  the  articles  on  the  judiciary  in  the  early  constitu- 
tions throw  little  light  on  the  actual  system  in  force.  One 
must  know  the  old  nisi  prius  practice  and  the  rules  of 
court ;  one  must  travel  the  circuit  with  judge  and  with 
counsel,  before  he  can  understand  the  state  judiciary  as 
it  was  organized  in  the  eighteenth  century.  The  most 
elaborate  article  on  the  judiciary  was  inserted  in  the 
Maryland   constitution   of   1776. 

As  yet,  executive  appointment  of  judges  for  a  long 
term,  —  usually  for  life,  or  good  behavior,  —  was  the 
notable  characteristic  in  most  of  the  states.  Democracy 
did  not  lay  its  hands  on  the  judiciary,  in  the  eighteenth 
century ;  as  yet  it  only  eyed  the  courts  with  longing  to 
fill  the  bench  with  favorites  elected  by  the  people.  The 
federal  judiciary  remains  a  monument  of  eighteenth  cen- 
tury wisdom.  Down  to  1803,  judges  were  appointed  by 
governors.  Ohio  began  the  reform  in  appointment  by 
intrusting  it  to  the  legislature.  The  popular  election  of 
judges  was  the  next  step,  delayed  till  1840.  By  the 
eighteenth  century  constitutions  the  courts  and  all  their 


THE   UNITED    STATES  79 

officials  were  withheld  from  popular  control.  The  gov- 
ernor nominated,  and  the  Senate,  or  upper  House,  ap- 
proved or  rejected  appointments.  This  was  in  accord 
with  colonial  and  British  precedents.  But  before  the 
century  closed,  democracy  was  clamoring  for  the  election 
of  justices  of  the  peace,  district  attorneys,  and  clerks  of 
the  courts,  and  the  more  ardent  innovators  were  theoriz- 
ing on  the  popular  election  of  judges.  The  people  con- 
trolled the  legislative  and,  in  most  states,  the  executive, 
though  in  some  the  governor  was  chosen  by  the  legisla- 
ture. The  next  step  in  popular  government  was  to 
organize  the  judiciary  on  the  basis  of  popular  elec- 
tions. As  yet,  this  innovation  was  in  the  stage  of  mere 
discussion. 

The  revolutionary  age  was  productive  of  legal  and 
judicial  minds  of  the  highest  order,  and  the  national  Con- 
stitution reflects  the  wisdom  of  Ellsworth,  Johnson,  Ham- 
ilton, Sherman,  Paterson,  Wilson,  Wythe,  Ingersoll, 
Pinckney,  and  Gouverneur  Morris.  This  galaxy  of  legal 
lights  shone  with  a  lustre  scarcely  brighter  than  that 
which  fell  from  the  minds  that  gave  the  states  their 
organic  laws.  It  was  the  age  of  John  Jay  and  John 
Marshall,  of  Felix  Grundy  and  John  Sloss  Hobart,  of 
William  Gushing,  of  Thomas  McKean,  and  Theophilus 
Parsons,  and  it  was  to  the  hands  of  such  as  these  that  the 
judicial  and  legal  affairs  of  the  states  were  first  intrusted. 

Each  constitution  was  adapted  to  the  wants  of  the 
people  of  the  state,  and  was  an  organic  act  separate  and 
apart  from  the  fundamental  law  of  every  other  state,  yet 
there  were  two  prevailing  types  of  constitutions :  the 
northern,  —  that  of  Massachusetts  ;  the  southern,  —  that 
of  Virginia.  New  states  followed  old  models,  as  Ken- 
tucky that  of  Virginia,  and  Tennessee  that  of  North 
Garolina.  Vermont  copied  after  the  constitution  of 
Pennsylvania.  New  York,  early  cosmopolitan,  framed  its 
first  constitution  with  remarkable  anticipation  of  the 
wants  of  the  future ;  as  it  were,  a  nineteenth  century 
instrument  made  in  the  eighteenth  century.  New  Jersey, 
like  New  York,  anticipated  the  future,  but  it  is  to  the 
judicial  system  of  New  Jersey  that  we  look  to-day  for 
the  exemplification  of  the  system  in  force,  commonly  in 


8o       A    CONSTITUTIONAL   HISTORY    OF 

the  -states,  in  the  eighteenth  century.  Pennsylvania  and 
Delaware  differed  but  slightly  in  their  organic  laws.  The 
constitution  of  Maryland  was  an  example  of  elaboration 
and  detail  not  found  in  any  other  commonwealth.  South 
Carolina  made  the  most  rigid  provisions  for  the  union  of 
church  and  state,  in  its  earlier  constitutions,  and  Georgia, 
liberal  in  its  general  policy,  affords  the  only  instance  of 
a  state's  basing  representation  on  the  "  federal  number,"  ^ 
as  the  provision  for  representation  of  three-fifths  of  the 
slaves  was  called,  after  the  adoption  of  the  national 
Constitution. 

The  early  state  constitutions,  with  the  exception  of 
that  of  Maryland,  were  much  briefer  instruments  than 
those  framed  by  conventions  in  our  day.  Having  incor- 
porated a  bill  of  rights  and  articles  organizing  the  legis- 
lative, the  executive,  and  the  judicial  departments,  the 
framers  of  these  instruments  were  usually  content  to 
make  an  end.  The  elaborate  administrative  features  of 
a  modern  state  constitution  are  the  civil  growth  of  years. 

The  characteristics  of  these  early  fundamental  laws 
are  the  characteristics  of  the  political  ideas  of  their  age : 
a  limited  suffrage,  a  government  based  on  property  and 
persons,  a  legislature  vested  with  general  powers,  an 
executive  vested  with  limited  powers,  and  an  appointive 
judiciary,  state  sovereignty,  federal  agency,  and  slight, 
if  any,  notion  of  United  States  citizenship.  The  state 
was  conceived  to  exist  for  the  individual,  —  a  social 
compact  made  and  maintained  for  the  protection  of  his 
natural  rights. 

But  democracy  was  writhing  under  restrictions,  and 
was  raising  its  voice  for  their  abolition,  and  for  direct 
participation  in  the  control  of  public  affairs. 

At  the  time  of  the  founding  of  the  present  national 
government,  the  individualistic  forces  of  the  country  were 
on  the  side  of  the  state  governments,  and  this  disposition 
of  power  was  bound  to  remain  unchanged  so  long  as  — 
to  use  the  words  of  Hamilton  —  the  government  of  the 
United  States  was  not  "  able  to  address  itself  immediately 
to  the  hopes  and  fears  of  individuals,  and  to  attract  to  its 

1  Georgia,  1798. 


THE   UNITED    STATES  8i 

support  those  passions  which  have  the  strongest  influence 
upon  the  human  heart."  ^  The  national  government,  if  it 
would  attain  years  and  vitality,  "  must  possess  all  the 
means  and  have  a  right  to  resort  to  all  the  methods  of 
executing  the  powers  with  which  it  is  intrusted,  that  are 
possessed  and  exercised  by  the  governments  of  the  par- 
ticular states."  ^ 

Here  was  clearly  stated  the  condition  which  should 
determine  the  fate  of  the  national  plan.  But  in  the  ulti- 
mate resolution  of  civil  forces  in  America,  state  and 
nation  were  alike  to  embody  and  to  express,  in  their 
evolution,  that  general  law  which  is  slowly  working  out 
the  distinctive  character  of  popular  government. 

1  "The  Federalist,"  No.  XVI. 


82       A    CONSTITUTIONAL   HISTORY    OF 


CHAPTER   VI 

RATIFICATION    AND   AMENDMENT 

In  the  closing  hours  of  the  federal  convention,  resolu- 
tions were  adopted  commending  the  Constitution  to  the 
people  of  the  states,  and  a  special  letter  was  prepared  to 
accompany  it  to  Congress.^  The  prospect  of  its  ratifica- 
tion was  gloomy.  Nearly  one-third  of  the  delegates  in  the 
late  convention  had  failed  to  sign  it,  and  it  was  certain 
that  several  would  oppose  it  in  their  own  states.  The 
national  party  was  strongest  at  the  commercial  centres ; 
the  state  party  could  depend  upon  the  support  of  the 
rural  districts.  The  numerous  emissions  of  paper  money 
by  the  states  had  pleased  most  of  the  rural  communities, 
but  had  alarmed,  and  in  many  cases  ruined,  the  merchants 
and  traders  in  the  towns.  The  business  men  of  the 
country  were  likely  to  welcome  any  plan  which  ofifered 
relief  and  assurance  for  the  future.  The  Congress  of 
the  Confederation  had  lost  prestige  and  was  not  in  the 
thought  of  the  people.  Its  sessions  were  poorly  attended, 
and  occasionally  weeks  would  pass  when  a  quorum  was 
with  difficulty  gathered.  There  were  men  influential  in 
Congress  who  would  oppose  the  Constitution,  and  the  state 
party  claimed  that  its  defeat  was  assured.  The  only  part 
which  Congress  had  to  play  in  the  matter  was  to  submit 
it  to  the  governors,  who  in  turn  should  submit  it  to  con- 
ventions specially  elected  to  consider  it.  But  Congress 
must  take  the  first  step. 

As  soon  as  the  instrument  was  received  in  Congress, 
Richard  Henry  Lee  and  other  leaders  of  the  state  party 

1  The  proceedings  and  debates  in  some  of  the  ratifying  conventions 
are  given  in  pLlliot's  "  Debates";  for  the  authorities  in  New  Hampshire, 
Vermont,  Massachusetts,  New  York,  Pennsylvania,  New  Jersey,  Dela- 
ware, Maryland,  North  Carolina,  and  Georgia,  see  the  author's  "  Constitu- 
tional History  of  the  United  States,  1765-1895,"  vol.  ii. 


THE   UNITED    STATES  83 

began  the  attack.  They  demanded  a  bill  of  rights ;  they 
objected  to  a  Vice-president;  they  thought  it  dangerous 
that  a  law  regulating  commerce  could  be  passed  by  a 
mere  majority.  However,  Congress  was  not  authorized 
to  amend  the  proposed  plan,  but  only  to  hand  it  on  to 
the  states.  The  contest  in  Congress,  therefore,  was  over 
the  manner  of  expressing  approval  or  disapproval  of  the 
new  plan.  The  national  party,  to  which  by  this  time  the 
term  "  Federalist  "  had  been  given,  as  the  term  "  Anti- 
Federalist  "  had  been  given  to  the  state  party,  though 
desiring  that  Congress  should  formally  approve  the  Con- 
stitution, soon  discovered  that  nothing  of  this  kind  could 
be  hoped  for.  The  best  they  could  secure  was  a  sub- 
mission to  the  states  without  comment  by  Congress.  The 
two  parties  were  so  evenly  balanced  that  neither  could 
control  Congress ;  the  result  was  a  compromise,  on  the 
28th  of  September,^  that  the  Constitution  should  be  sent  to 
the  states  with  the  imanimous  consent  of  Congress  but 
without  comment.  It  was  sent  forth  to  meet  its  fate  in 
the  state  conventions,  any  nine  of  which  approving  it 
could  thereby  make  it  the  supreme  law  of  the  land. 

Congress  was  not  the  first  body  to  act  on  the  Constitu- 
tion. It  had  been  formally  presented  to  the  Pennsylvania 
legislature  by  Franklin  and  his  colleagues  on  the  morning 
after  the  convention  had  adjourned.  A  contest  imme- 
diately arose  in  that  legislature  over  the  question  of  call- 
ing a  ratifying  convention.  The  Anti-Federalists  resorted 
to  obstructive  tactics  and  chiefly  to  absenting  themselves, 
so  as  to  prevent  a  vote,  but  the  Federalists  by  force  com- 
pelled the  attendance  of  a  quorum,  and  passed  an  act  call- 
ing a  convention.  It  met  in  Philadelphia  on  the  21st  of 
November.  Its  most  distinguished  member  was  James 
Wilson.  The  Anti-Federalist  delegates  attacked  the  new 
plan  as  a  clear  violation  of  the  rights  of  the  states  and  a 
menace  to  their  safety.  Wilson  and  his  federal  colleagues 
attempted  to  answer  these  objections  by  showing  that  the 
Constitution  was  republican  in  form ;  that  it  bore  a  close 
analogy  to  the  state  constitutions,  and  that  it  would 
remedy  all  the  defects  of  the  old  articles.     The  Anti- 

1  1787. 


84       A    CONSTITUTIONAL   HISTORY    OF 

Federalists  replied  that  the  new  plan  would  establish  a 
consolidated,  not  a  federal  government,  and  to  this 
opinion  they  clung  to  the  end.  Wilson  made  a  defence  of 
the  Constitution  which  remains  a  classic  exposition  of  its 
scope  and  purpose;  but  the  Anti-Federalists,  uncon- 
vinced, presented  a  petition  with  seven  hundred  and  fifty 
signatures,  asking  for  amendments  and  particularly  for 
a  bill  of  rights.  The  ballot  was  then  taken  and  the  Con- 
stitution was  ratified  by  a  vote  of  two  to  one.^  Though 
Pennsylvania  was  the  first  state  to  receive  the  Constitution, 
it  was  the  second  to  ratify.  Delaware  had  ratified  a  week 
before,  unanimously.^  Eleven  days  later  New  Jersey,^ 
followed  by  Georgia,  also  ratified  unanimously.*  On  the 
day  before  Georgia  ratified,  Connecticut  met  in  a  conven- 
tion, which,  after  nine  days'  session,  ratified  by  a  vote  of 
three  to  one.^  There  was  little  contest  in  Connecticut.  It 
was  one  of  the  small  states  and  realized  that  it  could 
receive  only  benefits  under  the  new  plan. 

On  the  day  the  Connecticut  convention  adjourned,  that 
of  Massachusetts  assembled  and  was  in  session  nearly  a 
month,  during  which  time  the  new  plan  was  debated  in 
detail.  The  state  had  been  the  theatre  of  Shays's  rebel- 
lion, and  some  who  had  participated  in  that  insurrection 
had  been  returned  as  delegates.  Elbridge  Gerry,  on  his 
return  home  from  the  federal  convention  had  begun  a 
vigorous  attack  on  its  work,  and  chiefly  because  of  its 
omission  of  a  bill  of  rights.  The  Massachusetts  conven- 
tion was  the  largest  that  assembled,  having  three  hundred 
and  sixty-four  members,  of  whom  the  majority  were  Anti- 
Federalists.  The  hope  of  the  Federalists,  therefore,  lay 
in  political  strategy.  John  Hancock,  who  at  heart  was  an 
Anti-Federalist,  was  made  president  of  the  convention, 
and  was  won  over  to  the  support  of  the  new  plan  by  the 
promise  of  political  honors.  Samuel  Adams,  whose  atti- 
tude was  in  doubt,  was  won  through  the  influence  of 
the  working-men.  The  weight  of  ability  in  the  con- 
vention lay  with  the  Federalists. 

It  was  the  supposed  undemocratic  character  of  the  new 

1  December  12,  1787;  46  to  23.  ^  December  7,  1787  ;  30  to  o. 

8  December  18,  1787  ;  38  to  o.  *  January  2,  178S;  26  to  o. 

^  January  9,  178S;   ij8  to  40. 


THE    UNITED    STATES  85 

plan  of  which  the  Anti-Federalists  most  complained ; 
only  amendments  and  a  bill  of  rights  could  give  it  the 
needed  qualities.  Fully  conscious  of  the  strength  of  their 
opponents,  the  Federalists  planned  a  compromise.  To  the 
amendments  demanded,  the  Federalists  should  give  their 
support.  The  ambition  of  Hancock  should  be  satisfied, 
and  Samuel  Adams  should  be  induced  to  bring  to  the 
support  of  the  Constitution  an  anti-federal  vote  sufficient 
to  ratify  it.  Many  of  the  Anti-Federalists  wished  to 
adjourn  and  await  the  action  of  other  states,  but  the  com- 
promise plan  was  carried  out ;  Hancock  was  re-assured 
of  his  election  as  governor,  and  was  told  that  he  might 
become  Vice-president.  Nine  amendments  were  prepared 
of  which  Hancock  was  made  to  appear  the  author. 
Though  Adams  saw  little  in  the  Constitution  which  he 
admired,  he  was  too  shrewd  a  politician  not  to  recognize 
the  significance  of  the  demand  which  came  up  from  the 
business  men  of  the  state  for  ratification.  The  vote  was 
taken  and  the  Constitution  was  adopted,  though  only  by 
a  majority  of  nineteen  votes,  in  a  total  of  three  hundred 
and  fifty-five.^  The  news  of  the  adherence  of  Massachu- 
setts encouraged  the  Federalists  in  other  states. 

In  Maryland  the  people  were  friendly,  but  the  political 
leaders  unfriendly,  to  ratification.  The  convention  in  that 
state  was  therefore  composed  of  a  powerful  majority  in 
its  favor,  somewhat  impatient  to  ratify.  After  a  week's 
debate,  the  vote  was  taken  and  the  Constitution  stood 
approved  by  more  than  five  to  one.^  The  Anti-Federal- 
ists, exasperated  by  federalist  contempt  of  their  objec- 
tions, demanded  twenty-eight  amendments,  but  to  these 
the  Federalists  gave  slight  attention.  Here  as  in  Penn- 
sylvania the  principal  objection  to  the  Constitution  was  to 
its  supposed  embodiment  of  a  consolidated  government. 

The  people  of  South  Carolina,  which  was  the  next  state 
to  act,  composed  an  agricultural  community,  too  long 
agreeably  familiar  with  over-issues  of  paper  money  and 
laws  violating  the  obligation  of  contracts.  The  people 
were  jealous  of  slavery  and  fearful  lest  laws  of  a  federal 
character  might  impose  taxes  on  slaves.    As  in  Pennsyl- 

1  February  16,  1788;  187  to  168.  «  April  28,  17S8;  63  to  11. 


86       A    CONSTITUTIONAL   HISTORY    OF 

vania  so  in  South  Carolina  a  sharp  contest  arose  in  the 
legislature  over  the  question  of  calling  a  convention,  and 
during  the  debate  nearly  every  anti-federal  objection  and 
every  federal  reply  was  heard.  The  Anti-Federalists 
lauded  the  Articles  of  Confederation  and  especially  state 
sovereignty.  They  deprecated  the  consolidation  of  power 
in  the  proposed  government  and  the  limit  of  time  for  the 
importation  of  slaves.  Especially  did  they  disapprove  of 
the  clause  forbidding  the  states  to  issue  paper  money. 
But  a  convention  was  finally  called,  among  whose  dele- 
gates were  John  Rutledge,  Charles  Pinckney,  and  Charles 
C.  Pinckney,  who  had  been  members  of  the  federal  con- 
vention. These  leaders  made  a  vigorous  defence  of  the 
new  plan  and  answered  every  anti-federal  objection  to 
it.  The  Anti-Federalists  were  in  the  minority  and  were 
forced  to  pursue  a  policy  of  obstruction,  but  the  best  they 
could  secure  was  the  adoption  of  four  amendments, 
whereupon  the  Constitution  was  ratified  by  a  vote  of  more 
than  two  to  one.^ 

The  ninth  state  to  convene  was  New  Hampshire,  an 
agricultural  community,  among  whose  people  the  pro- 
posed plan  did  not  stand  in  high  favor.  The  influence 
of  Massachusetts  was  felt,  and  the  majority  of  the  dele- 
gates chosen  to  the  Exeter  convention  were  undoubtedly 
Anti-Federalists,  as  was  proved  by  the  conduct  of  their 
opponents  in  not  venturing  to  press  the  vote  lest  the  Con- 
stitution should  be  promptly  rejected.  The  best  that  the 
friends  of  the  new  plan  could  do  was  to  adjourn  and  carry 
on  a  campaign  of  education.  While  the  convention  stood 
adjourned,  Maryland  and  South  Carolina  ratified,  the 
news  reaching  New  Hampshire  early  in  June.  The  effect 
was  plainly  visible  when  the  delegates  re-assembled  at 
Exeter  on  the  eighteenth  of  the  month.  Three  days  later 
the  vote  was  taken  and  the  Constitution  was  ratified, 
though  only  by  a  majority  of  eleven  votes. ^  As  in  Massa- 
chusetts, the  Federalists  had  to  pay  the  price  of  ratifica- 
tion ;  they  agreed  to  sixteen  amendments  which  their 
opponents  demanded  should  be  added  to  the  Constitution. 
New  Hampshire  being  the  ninth  state  to  ratify,  the  Con- 

1  May  23,  1788;  149  to  73.  3  June  21,  17SS;  57  to  46. 


THE   UNITED    STATES  87 

stittition  became,  by  its  own  terms,  the  supreme  law  of 
the  land,  but  no  one  thought  of  attempting  to  inaugurate 
the  new  government  until  the  three  remaining  states, 
which  had  been  represented  in  the  federal  convention,  — 
Virginia,  New  York,  and  North  Carolina,  —  should  take 
action ;  for  these  three  states  were  holding  conventions 
and  their  decisions  were  daily  expected. 

In  Virginia  the  division  of  parties  was  close  and  the 
prospect  of  ratification  uncertain.  Randolph  and  Mad- 
ison, who  had  been  prominent  in  making  the  Constitution, 
were  elected  delegates,  as  were  John  Marshall,  James 
Monroe,  Patrick  Henry,  and  a  score  more  of  eminent 
Virginians.  There  had  been  little  struggle  in  the  legis- 
lature over  the  calling  of  a  convention,  but  the  Anti-Fed- 
eralists, conscious  of  their  strength,  made  no  serious 
opposition.  Their  spokesman  at  Richmond  was  Patrick 
Henry,  who  vehemently  attacked  every  detail  of  the  Con- 
stitution, and  remained  to  the  end  of  the  debate  uncon- 
vinced that  it  possessed  notably  desirable  features.  It  was 
he  who  named  the  last  clause  on  the  powers  of  Congress 
"  the  sweeping  clause  " ;  and  it  was  he  who  made  the 
most  powerful  speech  against  the  Constitution  heard  in 
any  convention.  The  new  plan  was,  he  said,  that  of  a 
consolidated  government,  and  a  consolidated  government 
was  the  worst  government  that  could  be  adopted  for 
America.  He  was  sustained  by  George  Mason,  lately  a 
member  of  the  federal  convention ;  by  James  Monroe, 
destined  to  be  the  fifth  President  of  the  United  States ; 
by  William  Grayson,  who  had  opposed  the  Constitution 
in  Congress,  and  by  a  number  of  lesser  though  highly 
able  men. 

The  defence  of  the  Constitution  was  taken  up  by  Mad- 
ison and  Marshall,  and  to  them  the  final  victory  in  Vir- 
ginia was  largely  due.  One  other  eminent  Virginian, 
who  was  not  a  delegate  at  Richmond,  was  perhaps  more 
influential  in  the  state  than  the  entire  party  of  Anti- 
Federalists.  Washington,  from  the  moment  when  the 
circular  letter  had  been  sent  to  Congress  commending  the 
Constitution,  had  not  ceased  to  write  and  speak  on  behalf 
of  the  new  plan.  Had  he  not  been  a  member  of  the  Phila- 
delphia convention,  it  may  be  doubted  whether  the  Con- 


88       A    CONSTITUTIONAL   HISTORY    OF 

stitution  would  have  been  ratified  by  Virginia.  Jefferson 
was  absent  as  minister  to  France,  but  he  carried  on  a  close 
correspondence  with  Madison  and  with  the  anti-federal 
leaders,  and  thus  kept  in  touch  with  the  course  of  events 
at  home.  His  influence  was  very  great,  —  second  indeed 
only  to  that  of  Washington.  He  favored  ratification  and 
an  amendment  of  the  Constitution,  for  he  knew  too  well 
the  defects  of  the  old  Articles.  On  the  26th  of  June,  after 
a  session  of  twenty-six  days,  the  vote  was  taken.  Twenty 
amendments  were  proposed,  and  a  bill  of  rights  in 
twenty  articles.  The  Constitution  was  then  ratified  by  a 
meagre  majority  of  ten  votes. ^  It  may  be  said  that  the 
ten  votes  which  saved  the  Constitution  in  Virginia  repre- 
sented the  influence  of  Washington.  A  strong  efifort  was 
made  to  make  the  ratification  conditional,  but  happily  this 
failed. 

While  the  people  of  Virginia  were  discussing  the  Consti- 
tution, New  York  met  in  convention  at  Poughkeepsie  for 
the  same  purpose.  The  state  was  agricultural,  and,  except 
in  the  city  of  New  York,  strongly  anti-federal.  There 
seemed  little  hope  that  the  Constitution  would  be  approved. 
At  the  head  of  the  opposition  stood  the  governor,  George 
Clinton,  who  was  actively  supported  by  a  powerful  per- 
sonal following.  The  federal  leaders  were  Hamilton, 
John  Jay,  who  at  the  time  was  secretary  of  foreign  aflFairs 
in  the  Confederation,  and  Robert  R.  Livingston,  the  chan- 
cellor of  the  state. 

The  Anti-Federalists  objected  to  every  important  fea- 
ture of  the  new  plan  and  especially  to  the  powers  of 
Congress  and  the  organization  of  the  Senate.  They  com- 
plained of  the  omission  of  a  bill  of  rights.  Finally,  after 
a  bitter  contest,  Hamilton  and  his  federal  colleagues,  by 
sheer  intellectual  efifort  and  a  willingness  to  compromise, 
won  the  day ;  but  it  was  a  narrow  escape.  A  change  of 
two  votes  would  have  defeated  the  Constitution.  How- 
ever, it  stood  ratified,^  and  the  convention  sent  up  twenty- 
four  amendments  and  a  bill  of  rights  in  thirty-two 
articles.  The  recent  decision  of  New  Hampshire  and 
Virginia  undoubtedly  influenced  that  of  New  York, 
which  had  no  desire  to  be  isolated  from  the  Union,  though 

^  June  26,  1788;  89  to  79.  2  July  26,  17S8;  30  to  27. 


THE   UNITED    STATES  89 

the  Anti-Federalists  in  the  state  claimed  that  the  state 
was  able  to  maintain  a  separate  government. 

It  was  while  the  Poughkeepsie  convention  was  in  ses- 
sion that  the  series  of  articles  made  their  appearance  in 
several  New  York  papers,  addressed  to  the  people  of  the 
state  of  New  York  urging  them  to  ratify  the  Constitution. 
They  appeared  over  the  signature  Publius,  which,  it  was 
soon  discovered,  was  a  pseudonym  for  Hamilton,  Madi- 
son, and  Jay.  These  papers,  known  collectively  as  "  The 
Federalist,"  comprise,  as  we  have  seen,  the  classic  expo- 
sition, in  the  eighteenth  century,  of  the  American  system 
of  government.^  They  were  given  a  wide  circulation  by 
the  Federalists  and  had  some  influence  in  determining 
the  decision  of  Virginia  and  New  York.  For  a  time  it 
had  seemed  that  New  York  would  ratify  only  condition- 
ally, but  through  the  efforts  of  Hamilton  this  disaster 
was  averted. 

A  few  days  before  the  New  York  convention  ad- 
journed, the  people  of  North  Carolina  assembled  at  Hills- 
boro,  in  the  persons  of  two  hundred  and  twenty-eight 
delegates,  to  consider  the  Constitution.  There  were  no 
large  commercial  centres  in  the  state ;  its  people  were 
agricultural,  were  widely  scattered,  and  hostility  or  in- 
difference to  the  Constitution  prevailed  among  them. 
James  Iredell  and  a  few  federal  colleagues  struggled 
bravely  to  carry  ratifications,  but  theirs  was  a  hopeless 
task.  The  Anti-Federalists,  realizing  their  power,  merely 
tolerated  discussion.  They  attacked  every  provision  of 
the  Constitution  and  pronounced  the  entire  plan  objection- 
able. The  adverse  vote  would  be  only  a  matter  of  major- 
ities. The  Federalists  were  helpless ;  they  could  only 
utter  warnings.  Finally,  after  two  days'  debate,  the  vote 
was  cast.  North  Carolina  demanded  a  bill  of  rights  in 
twenty  articles  and  twenty-six  amendments ;  if  these 
were  incorporated  she  would  ratify  the  plan.  But  on  a 
clear  vote  the  Constitution  would  have  been  rejected  by 
more  than  two  to  one.^  This  decision  left  the  state  in  an 
anomalous  position. 

Meanwhile  eleven  states  having  ratified,  the  new  na- 
tional plan  had  been  inaugurated.     Congress  had  organ- 

^  See  chaps,  iii,  iv.  ^  August  4,  1789. 


90       A    CONSTITUTIONAL   HISTORY    OF 

ized  the  House  on  the  ist,  the  Senate  on  the  6th  of  April, 
1789,  on  which  latter  day  the  electoral  votes  had  been 
counted.  Washington  had  been  chosen  President  unani- 
mously, and  John  Adams,  the  next  highest  candidate, 
was  Vice-president.  On  the  30th  of  April  Washington 
was  inaugurated  in  New  York  City.  Within  a  few  days 
he  sent  to  the  Senate  his  list  of  civil  appointments :  cab- 
inet officers,  federal  judges,  and  minor  officials.  All  were 
confirmed.  Before  the  summer  was  over,  all  departments 
of  the  new  government  were  in  operation. 

Until  this  time  the  Constitution  had  been  scarcely  more 
than  a  plan  on  paper.  Its  inauguration  as  an  actual  gov- 
ernment worked  a  great  change  in  public  sentiment  to 
which  the  people  of  North  Carolina  responded.  They  had 
hesitated  to  approve  it  before,  being  fearful  that  their 
rights  as  a  state  might  be  impaired,  but  the  disposition  of 
the  Federalists,  who  were  in  the  majority  in  the  new 
government,  to  give  respectful  consideration  to  the  many 
amendments  which  had  been  proposed  by  the  conventions, 
now  allayed  opposition  in  North  Carolina,  and  on  the 
1 6th  of  November,  1789,  its  people  again  assembled  in 
convention  and  five  days  later  ratified  the  Constitution,^  by 
a  vote  of  more  than  two  to  one.  They  insisted,  however, 
upon  the  adoption  of  amendments  and  of  the  bill  of 
rights  which  they  had  sent  up  before. 

In  the  aggregate  the  vote  in  the  ratifying  conventions 
was  two  to  one  in  favor  of  the  Constitution,  but  the  votes 
in  detail  made  a  very  different  showing.  A  change  of 
two  in  New  York,  of  five  in  Virginia,  and  of  ten  in  Massa- 
chusetts, on  the  final  ballots,  would  have  rejected  the  Con- 
stitution and  left  the  country  with  chaos  impending. 
Connecticut,  New  Jersey,  Delaware,  and  Georgia  sug- 
gested no  amendments,  and  none  came  officially  from 
Pennsylvania,  though  the  Harrisburg  conference  pro- 
posed fourteen.  But  the  remaining  states  had  dernanded, 
in  the  aggregate,  one  hundred  and  forty-five  articles  as 
amendments,  and  ninty-three  articles  as  bills  of  rights. ^ 

1  November  21,  1789;  193  to  75. 

2  The  amendments  proposed  by  the  different  conventions  are  given 
with  the  acts  of  ratification  in  the  "  Documentary  History  of  the  Consti- 
tution," vol.  ii ;  most  of  them  are  given  in  Elliot,  vol.  i. 


THE   UNITED    STATES  91 

In  every  instance  the  amendments  were  demanded  by  the 
minority.  The  narrow  margin  by  which  the  Constitution 
had  been  ratified,  and  the  strong  opposition  which  had 
been  manifested,  both  to  its  form  and  to  its  possible  ad- 
ministration, made  it  the  first  pohtical  duty  of  the  new 
government  to  respect  and  utiHze  the  demands  of  the 
minority,  and  to  submit  such  amendments  to  the  states 
as  would  be  likely  to  allay  further  agitation.  In  the 
House  of  Representatives,  Madison  was  the  leader  of  that 
nascent  party  soon  to  be  called  the  Democratic-Repub- 
lican, and  he  was  deeply  anxious  to  remove  every  obstacle, 
in  the  path  of  the  new  government.  On  the  4th  of  May, 
1789,  he  gave  notice  of  his  intention  to  bring  up  the 
subject  of  amendments  at  an  early  day,  and  on  the  8th 
of  June  he  moved  that  the  house  go  into  committee  of 
the  whole  for  the  purpose  of  considering  them. 

The  opinion  of  Hamilton,  Wilson,  and  Pinckney,^  that 
the  Constitution  itself  was  a  bill  of  rights,  was  not 
accepted  by  the  Anti-Federalists.  Hamilton  or  Pinckney, 
or,  indeed,  any  member  of  the  late  convention,  could  point 
out  many  passages  in  the  Constitution  which  were  tran- 
scripts of  clauses  in  bills  of  rights  in  the  state  constitu- 
tions.^ Jefferson  had  urged  the  addition  of  amendments 
and  had  pronounced  Wilson's  opinion,  that  the  Constitution 
itself  was  a  bill  of  rights,  a  "  gratis  dictum,  the  reverse 
of  which  might  just  as  well  be  said,"  ^  and  Jefferson 
undoubtedly  expressed  the  convictions  of  those  represented 
by  the  minority  in  the  ratifying  conventions.  On  the 
other  hand,  the  Federalists  looked  upon  amendments  as 
untimely  and  superfluous.*  But  the  request  of  the  gen- 
eral assembly  of  Virginia,^  that  Congress  should  call 
another  convention,  and  the  evidence  of  discontent  in  all 


1  "The  Federalist,"  No.  LXXXIV;  Pinckney  in  the  South  Caroh'na 
Convention;  Elliot,  vol.  iv ;  Wilson's  speech  at  the  State  House  in 
Pennsylvania  and  the  Federal  Constitution,  pp.  143-150;  and  in  the  con- 
vention, Id.  pp.  252-254. 

'  See  for  the  sources  and  authorship  of  the  Constitution  the  author's 
"Constitutional  History  of  the  United  States,  1 765-1895,"  vol.  iii,  pp. 

463-5^';- 

^  Jefferson's  Works,  vol.  ii,  p.  329. 

*  McRee's  "  Iredell,"  vol.  ii,  p.  265. 

*  Annals,  1789,  pp.  258-259. 


92       A    CONSTITUTIONAL   HISTORY   OF 

parts  of  the  country,  made  it  quite  certain  that  the  states 
were  prepared  to  adopt  amendments  which  would  embody 
the  purpose  of  all  that  had  been  suggested.  Objections 
to  the  Constitution  were  two-fold,  —  to  its  structure,  and 
to  the  probable  administration  of  the  government  by  the 
Federalists.  Their  opponents  were  determined  to  remedy 
the  one  and  to  prevent  the  other. 

On  the  8th  of  June,  Madison  submitted  his  plan.  He 
would  insert  eight  amendments  here  and  there  in  the 
Constitution.  The  preamble  should  be  preceded  by  a 
statement  that  power  is  derived  from  the  people ;  that 
government  is  instituted  for  their  benefit,  and  that  it  is 
their  right  to  change  it  from  time  to  time.^  He  found 
the  precedent  for  this  part  of  his  plan  in  the  Declaration 
of  Independence,  in  most  of  the  state  constitutions,  and 
in  amendments  which  had  been  suggested  by  nearly  all 
the  conventions.  He  would  strike  out  the  clause  on  the 
apportionment  of  representatives,^  and  would  substitute 
a  provision  for  a  variable  ratio,  with  a  final  limit  of  mem- 
bership. For  these  changes  he  found  immediate  precedent 
in  the  amendments  suggested  by  the  Harrisburg  con- 
ference, and  from  those  which  came  up  from  Massachu- 
setts, Virginia,  New  York,  North  Carolina,  and  New 
Hampshire.  He  would  change  the  clause  relating  to 
the  compensation  of  senators  and  representatives,^  so 
that  no  Congress  could  increase  the  salary  of  its  own 
members :  embodying  amendments  demanded  by  Virginia, 
New  York,  and  North  Carolina. 

His  fourth  amendment  was  the  insertion  of  ten  new 
clauses,*  forbidding  legislation  which  might  abridge  free- 
dom of  worship  or  infringe  the  rights  of  conscience; 
making  the  rights  of  freedom  of  speech  and  of  the  press 
inviolable ;  securing  the  right  of  peaceably  assembling  and 
the  right  of  petition ;  securing  the  right  to  bear  arms, 
and  the  exemption  of  all  who  on  account  of  religious 
scruples  might  be  unwilling  to  go  into  military  service 
in  person  ;  forbidding  the  quartering  of  soldiers  in  private 
houses  without  the  consent  of  their  owners ;  exempting 

1  Annals,  1789,  pp.  451-453.  ^  Article  T,  section  2,  clause  3. 

'  Article  I,  section  6,  clause  i.  *  Amending  Article  I,  section  9. 


THE   UNITED    STATES  93 

a  person  on  trial  from  being  a  witness  against  himself; 
forbidding  the  seizure  of  private  property  for  public  uses 
without  just  compensation,  and  taking  life,  liberty,  or 
property  without  due  process  of  law.  From  the  EngHsh 
bill  of  rights  of  1689  he  took  the  clause  on  excessive  bail 
and  fines,  and  cruel  and  unusual  punishments,  a  provision 
confirmed  many  times  by  colonial  assemblies,  embodied 
in  the  declaration  of  rights  of  1765,  found  in  six  of  the 
state  constitutions,  and  demanded  as  an  amendment  by 
Pennsylvania,  Virginia,  and  North  Carolina.  The  people 
should  be  secured  in  their  person  and  property  against 
unreasonable  seizures  and  searches,  and  warrants  should 
not  be  issued  without  probable  cause,  supported  by  oath 
or  affirmation,  particularly  describing  the  place  to  be 
searched  and  the  person  or  thing  to  be  seized.  These 
provisions  were  found  in  the  Declaration  of  Independence, 
in  nearly  all  the  state  constitutions,  and  had  been  de- 
manded as  amendments  by  four  states. 

In  criminal  prosecutions,  the  accused  should  enjoy 
those  rights  and  privileges  as  to  witnesses  and  counsel 
with  which  the  country  had  long  been  familiar.  Madison 
found  a  precedent  for  this  provision  in  Magna  Charta ; 
in  its  confirmation  by  colonial  legislatures ;  in  the  petition 
of  right  of  1628;  in  the  declaration  of  rights  of  1765; 
in  the  Declaration  of  Independence;  in  nine  of  the  state 
constitutions,  and  in  the  amendments  demanded  by  five 
states.  He  also  proposed  that  the  exceptions  made  in 
favor  of  particular  rights,  in  the  Constitution,  should  not 
be  construed  to  diminish  others  retained  by  the  people, 
or  to  enlarge  the  powers  delegated  by  the  Constitution,  — 
for  which  "provision  the  constitutions  of  three  states  and 
the  amendments  suggested  by  seven  were  the  immediate 
precedent.  It  will  be  observed  that  these  ten  clauses, 
which  he  proposed  to  insert,  corresponded  closely  to  the 
•  amendments  finally  adopted.  His  fifth  amendment^  would 
forbid  the  violation  of  the  rights  of  conscience,  of  the 
freedom  of  the  press  and  of  trial  by  jury;  a  limitation 
which  found  precedent  in  all  the  state  constitutions  and 
in  the  amendments  proposed  by  five  of  the  conventions. 

1  Amending  Article  I,  section  lo,  by  inserting  a  new  clause  between 
one  and  two. 


94       A   CONSTITUTIONAL    HISTORY    OF 

His  sixth  amendment  ^  forbade  appeals  in  cases  in 
which  the  value  in  controversy  did  not  amount  to  a  fixed 
number  of  dollars,  and  no  fact  triable  by  jury  according 
to  the  course  of  the  common  law  should  be  re-examinable 
except  as  consistent  with  its  principles.  This  amendment 
had  been  asked  for  by  four  conventions.  His  seventh 
amendment  substituted  two  new  clauses  for  the  provision 
respecting  the  trial  of  crimes.-  His  purpose  was  to 
secure  the  convenience  of  suitors,  to  provide  for  a  change 
of  venue  if  necessary,  and  to  amend  the  practice  of  the 
common  law.  His  provision  read  much  like  a  rule  of 
court,  but  it  had  a  precedent  in  the  constitutions  of  five 
states  and  in  the  amendments  demanded  by  six  of  the 
conventions.  His  eighth  amendment  would  make  a  new 
article, •'*  and  was  intended  to  secure  the  complete  separa- 
tion of  the  three  departments  of  government,  and  to  pre- 
vent the  exercise  of  the  power  of  one  by  either  of  the 
others.  Its  second  clause  provided  that  the  powers  not 
delegated  by  the  Constitution,  nor  prohibited  by  it  to  the 
states,  were  reserved  to  them  respectively.  The  first  part 
of  his  article  was  taken  from  the  constitutions  of  six 
states,  and  was  demanded  by  three  of  the  ratifying  con- 
ventions. The  second  part  was  found  in  the  constitutions 
of  three  states  and  had  been  demanded  by  six  of  the  con- 
ventions. 

Thus  Madison's  eight  amendments  embodied  provi- 
sions already  in  force  in  most  of  the  state  constitutions 
and  demanded  as  amendments  by  many  of  the  ratifying 
conventions.  Several  of  his  provisions  were  as  old  as 
Magna  Charta. 

The  first  thought  on  reading  Madison's  amendments 
is  of  the  identity  of  the  political  principles  which  they 
embody  with  those  principles  of  republican  government 
cited  throughout  "  The  Federalist."  They  confirm,  too, 
the  opinion  already  expressed.  The  popular  conception 
of  republican  principles  in  1789  was  of  those  enunciated 
in  the  organic  laws  of  the  states.  The  essential  feature 
of  Madison's  purpose  was,  therefore,  to  bring  the  written 

1  Amending  Article  III,  section  2,  by  adding  a  second  clause. 
'  In  Article  III,  section  2,  clause  3. 
3  To  follow  Article  VI. 


THE   UNITED    STATES  95 

expression  of  the  national  government  into  complete  har- 
mony with  the  principles  of  the  state  governments. 

He  based  his  general  argument  for  his  amendments  on 
their  importance  as  barriers  to  protect  the  people  against 
the  federal  government  and  as  checks  and  balances  to 
prevent  each  of  its  departments  from  encroaching  on 
the  other.  The  executive,  he  said,  was  the  weakest 
department ;  therefore,  the  power  of  the  legislature  should 
be  limited.  He  was  unwilling  to  make  Congress  the 
final  judge  of  all  public  matters.  He  could  not  under- 
stand why  the  federal  government  should  not  be 
restrained  by  the  federal  Constitution,  as  the  governments 
of  the  states  were  restrained  by  their  constitutions.  Their 
legislatures  were  the  guardians  of  popular  liberty ;  Con- 
gress could  not  safely  be  entrusted  with  it.  Thus,  his 
amendments  forbidding  Congress  to  fix  its  own  compen- 
sation, or  to  infringe  the  rights  of  conscience,  freedom 
of  the  press,  or  trial  by  jury,  were  equally  necessary. 
The  article  on  the  federal  judiciary  should  be  amended 
so  as  to  obviate  the  great  inconvenience  to  which  the 
people  would  be  subjected  in  being  forced  to  travel  great 
distances  in  cases  of  appeal,  or  in  actions  for  a  small 
debt  in  a  case  pending  in  the  supreme  court.  Having 
briefly  explained  all  his  amendments,  Madison  moved 
that  they  be  referred  to  a  select  committee. 

But  the  Federalists  saw  little  necessity  for  this,  and 
thought  that  Congress  should  proceed  with  the  more 
pressing  matter  of  the  revenue  bill,  then  pending.  Gerry 
pointedly  remarked  that  the  salvation  of  the  country 
depended  upon  the  establishment  of  the  government, 
whether  or  not  the  Constitution  was  amended ;  but  he 
was  favorable  to  Madison's  amendments,  as  they  might 
win  North  Carolina  and  Rhode  Island,  which  had  not 
yet  ratified.  Roger  Sherman  declared  it  a  matter  of 
wonder  that  the  Constitution  had  been  adopted  at  all. 
Of  the  eleven  states  which  had  ratified,  the  majority  had 
not  proposed  amendments,  and  he  was  doubtful  whether 
any  which  might  be  proposed  by  Congress  would  be 
approved  by  the  states,  because  there  was  so  slight 
demand  for  them.  Would  it  not  be  better  to  wait  the 
test  of  experience  and  thus  determine  what  amendments 


96       A    CONSTITUTIONAL   HISTORY    OF 

were  necessary?  Fisher  Ames  boldly  accused  Madison 
of  ang-ling  for  popularity,  and  most  of  the  Federalists 
were  content  to  pronounce  the  amendments  needless. 

But  Madison  was  fixed  in  his  determination  to  carry 
them   through.     Debate   should   be   cut   short   and   every 
proposition  of  a  doubtful  or  unimportant  nature  should 
be  excluded.^     He  wished  to  avoid  the  risk  of  a  second 
federal   convention.     The   amendments,    said   he,    would 
not  only  conciliate  all  parties  but  would  put  public  affairs 
"  into  an  auspicious  train."  -    The  House  decided  at  first 
to  refer  the  amendments  to  the  committee  of  the  whole, 
but  finally,  and  owing  largely  to  Fisher  Ames's  activity, 
they  were  handed  over  to  a  select  committee  of  one  from 
each  state.     Among  the  eleven  appointed  were  Madison, 
the   chairman ;    and    Baldwin,     Sherman,     Oilman,    and 
Clymer,  who  had  been  members  of  the  federal  convention. 
On  the  13th  of  August,  the  committee  reported  a  series  of 
amendments  in  eighteen  clauses,  which  in  substance  were 
,  Madison's  propositions.^     In  the  debate  which  followed, 
'  the  Federalists  objected  to  the  report  because,  they  said, 
if  the  amendments  were  inserted  in  the  Constitution  it 
would    appear,    unless    the    archives    of    Congress    were 
searched,    that    Washington    and   other   worthy   men   in 
convention  had  signed  an  article  which  they  had  never 
had    in    contemplation.      Gerry    argued    that    Madison's 
plan  of  incorporating  the  amendments  accorded  with  the 
evident  intent  of  the  Constitution  itself;    Sherman  urged 
that  all  the  amendments  should  be  added  at  the  end  oi 
the  Constitution  so  as  to  avoid  confusion  ;  but  the  majority 
favored   incorporation,  and   Sherman's  motion  was   lost. 
Later  the  matter  was   reconsidered  and  his   suggestion 
prevailed. 

On  the  14th  of  August  the  amendments  were  taken 
up  in  their  order  and  gradually  given  the  form  in 
which  they  now  stand.  The  proposition  to  establish  a 
minimum  and  a  maximum  number  of  members  in  the 
House  did  not  meet  with  great  favor.    The  difficulty  was 

1  Madison  to  Randolph,  August  21.  1789;  Works  vol.  i,  p.  490. 

2  Madison  to  Jefferson,  December  12,  1788,  Works  vol.  i,  p.  446. 

8  The  committee's  report  in  Annals,  1789,  pp.  733-79°  i  House 
Journal,  p.  85. 


THE   UNITED    STATES  97 

to  fix  a  number  which  would  prove  adequate  to  the  public 
business,  and  no  two  members  agreed  as  to  what  this 
number  should  be.  The  number  of  members  in  the  state 
legislatures  was  determined  by  the  number  of  districts 
and  by  population,  both  of  which  factors  frequently 
changed.  It  was  finally  decided  that  the  maximum  mem- 
bership should  be  two  hundred.  All  agreed  that  no  Con- 
gress should  have  power  to  increase  the  salary  of  its 
own  members.  Much  of  the  discussion  turned  on  the 
phraseology  of  the  amendments,  and  respecting  this 
Gerry  had  much  to  say  and  was  largely  instrumental  in 
settling  the  final  language  of  the  clauses. 

It  was  while  the  clause  on  the  freedom  of  religion  was 
under  discussion  that  Gerry  observed  that  in  the  ratifying 
conventions  the  difficulty  between  the  two  parties  con- 
sisted in  the  willingness  of  the  Federalists  to  racify  the 
Constitution  as  it  stood,  and  the  unwillingness  of  the  Anti- 
Federalists  to  ratify  until  it  had  been  amended.  "  Their 
names,"  he  said,  "  ought  not  to  have  been  Federalists 
and  Anti-FederaHsts,  but  Rats  and  Anti-Rats,"  and  he 
embraced  the  opportunity  to  accuse  Madison  of  favoring 
a  consolidated  government.  The  debate  on  the  rights 
of  conscience,  on  freedom  of  the  press,  on  the  right  of 
petition,  and  other  rights,  already  guaranteed  by  custom 
and  the  state  constitutions,  was  languid.  Provisions  in 
the  state  constitutions  securing  these  rights  were  already 
recognized  civil  axioms.  Now  and  then  a  member 
objected  to  the  committee's  report  because  it  did  not 
include  some  particular  amendment  demanded  by  his 
state,  but  the  report  was  comprehensive  and  its  omissions 
were  all  satisfactorily  explained.  When  the  discussion 
reached  the  provision  that  the  enumeration  of  certain 
rights  in  the  Constitution  should  not  be  construed  to  deny 
or  to  disparage  others  retained  by  the  people,  Tucker 
of  Virginia,  an  Anti-Federalist,  remarked  that  it  meant 
the  alteration  of  the  state  constitutions  and  could  better 
be  left  to  the  state  governments ;  he  therefore  moved  to 
strike  it  out.  Madison  quickly  replied  that  he  considered 
it  the  most  important  of  the  whole  list.  It  was  equally 
necessary  to  secure  the  people  against  the  infringement 
of  their  rights  by  either  government,  and  the  House  sus- 

7 


98       A    CONSTITUTIONAL    HISTORY    OF 

tained  him.  The  language  finally  given  to  the  clause  was 
suggested  by  Carroll,  of  Maryland. 

Finally,  the  report  of  the  committee  of  eleven,  as 
amended,  was  handed  over  to  a  special  committee  con- 
sisting of  Benson,  Sherman,  and  Sedgwick,  with  instruc- 
tions to  arrange  and  report  amendments,  which  they  did 
on  the  following  day  ^  in  seventeen  articles.  These  were 
then  sent  to  the  Senate.  Little  is  known  of  what  was  said 
of  them  there,  but  it  is  known  that  the  federalist  senators 
were  strongly  opposed  to  them ;  and  that  they  were  able 
greatly  to  modify  the  report ;  so  much  so,  indeed,  that 
when  it  reached  the  House  that  body  refused  to  recede 
from  its  own  propositions  or  to  accept  the  report.  Finally, 
on  the  24th  of  September,  the  amendments  were  sent  to  a 
committee  of  conference,  with  the  result  that  the  House 
receded  on  condition  that  the  Senate  should  agree  to 
changes  in  two  articles.  On  the  25th  of  September,  the 
Senate  concurred  and  the  amendments,  now  cut  down 
from  seventeen  to  twelve,  were  adopted.^  Of  these,  the 
last  ten  were  speedily  approved  by  the  requisite  number 
of  states,  and  on  the  last  day  of  June,  1790,  Washington 
announced  to  Congress  that  they  had  been  ratified. 

The  amendments  supplied  a  bill  of  rights  and  satisfied 
the  "  public  demand,"  as  Jefferson  had  expressed  it  to 
Madison,  in  a  letter  written  soon  after  the  adjournment 
of  the  federal  convention.^  Washington  had  early  de- 
clared his  willingness  to  embrace  any  compromise  that 
would  save  the  country  from  ruin,  and  had  been  confident 
that  the  most  violent  opponents  of  the  Constitution  would 
peaceably  co-operate  in  the  organization  of  the  government 
and  be  content  to  ask  for  amendments  in  the  manner  it 
prescribed.*  But  most  of  the  Federalists  looked  upon 
the  amendments  as  a  rash  innovation.^  Pierce  Butler 
spoke  of  them  as  milk  and  water  amendments,"  and  Ames 
called  them  "  rather  food  than  physic,  an  immense  amount 

J  Their  report  is  in  Senate  Journal,  August  25,  1789. 

2  Senate  Journal,  1789;  Appendix,  Elliot,  vol.  i,  p.  338. 

'  Jefferson  to  Madison,  December,  17S7,  Jefferson's  Works,  vol.  ii, 

P-  329- 

♦  Jefferson's  Works  (Ford's  Edition),  vol.  xi,  pp.  299-321. 

6  'FisherAmestoGeorgeR.Minot,July3, 1789;  "Life  of  Ames,"  p.  165 

•  McRee's  "Iredell,"  vol.  ii,  p.  261;. 


THE   UNITED    STATES  99 

of  sweet  and  other  herbs  and  roots  for  a  diet  drink."  ^ 
But  moderate  men  of  both  parties  incHned  to  Madison's 
view,  —  that  the  amendments  were  necessary  to  secure 
the  rights  of  conscience,  freedom  of  the  press,  trial  by 
jury,  and  protection  against  general  warrants,  and  that 
they  could  not  fail  to  conciliate  the  opposition.-  Certain 
it  is  that  from  the  time  of  their  adoption,  the  opponents 
of  the  Constitution  grew  temperate  in  speech  and  at  last 
vanished  as  a  party. 

The  states  had  taken  up  the  amendments  willingly, 
and  their  ratification  was  in  progress  when  North  Caro- 
lina approved  the  Constitution.  Maryland  followed  New 
Jersey,  and  North  Carolina  approved  them  in  December, 
1789.  By  the  last  of  March  of  the  following  year  five 
more  states  ratified.  Another  state  could  make  them  a 
part  of  the  Constitution. 

This  state  was  Rhode  Island.  It  had  refused  to  par- 
ticipate in  the  federal  convention,  and  for  more  than  two 
years  had  taken  no  action  on  the  Constitution.  But  this 
apparent  apathy  did  not  reflect  the  sentiments  of  many 
of  its  people.  The  Federalists  in  Rhode  Island  were  the 
minority  party,  and  for  two  years  had  struggled  in  the 
assembly  in  vain  to  pass  a  bill  calling  a  convention.  Seven 
times  did  the  bill  fail.  The  eighth  time  it  was  carried, 
but  only  by  the  vote  of  the  governor,  John  Collins,  who, 
on  Sunday,  January  17,  1790,  decided  by  his  vote  that  a 
convention  should  be  called.  Though  the  Constitution 
was  now  in  force  and  the  administration  of  Washington 
well  under  way,  the  seventy  delegates  who  met  at  South 
Kensington,  on  the  8th  of  March,  proceeded  to  discuss 
the  Constitution  as  if  its  fate  was  in  their  hands.  For 
sixty-five  days,  in  two  sessions  of  the  convention,  they 
debated,  finding  much  to  object  to  and  little  to  approve. 
Finally  by  a  meagre  majority  of  two  votes  they  ratified 
the  Constitution,  at  the  same  time  insisting  on  the  adop- 
tion of  eighteen  amendments  and  a  bill  of  rights  in 
twenty-one  articles,  and  this,  when  the  Constitution  had 
been  in  operation  more  than  a  year.^ 

1  "Life  of  Ames,"  vol.  i,  p.  154. 

2  Madison's  Works,  vol.  i,  pp.  446-448,  463,  4S5-486. 
»  May  29,  1790  ;  34  to  32. 


loo     A   CONSTITUTIONAL   HISTORY    OF 

By  this  time  eight  states  had  approved  ten  of  the  amend- 
ments which  Congress  had  lately  submitted,  and  these  ten 
embodied  the  substance  of  the  reasonable  demands  of 
Rhode  Island.  Its  legislature,  now  fully  satisfied,  gladly 
took  up  the  congressional  amendments,  approved  them 
on  the  15th  of  June,  and  by  its  action  made  them  a  part 
of  the  Constitution. 

Vermont  for  fourteen  years  had  been  an  independent 
state  and  standing  faithfully  by  the  side  of  the  other  states 
throughout  the  revolution.  It  had  long  been  engaged  in 
a  boundary  dispute  with  New  York,  a  calamity  which  un- 
doubtedly prevented  the  Congress  of  the  Confederation 
from  including  it  within  the  Union.  In  October,  1790,  this 
dispute  was  settled  to  the  satisfaction  of  both  states,  and 
the  last  barrier  was  removed  to  the  formal  admission  of 
Vermont.  Early  in  January  of  the  following  year,  its 
people,  through  their  representatives,  assembled  in  conven- 
tion at  Bennington  to  take  action  on  the  Constitution. 
There  were  only  four  vigorous  Anti-Federalists  among 
the  one  hundred  and  nine  delegates.  For  five  days  the 
great  question  was  discussed  in  a  perfunctory  way,  and 
then  the  Constitution  was  formally  ratified.^  A  month 
later  Congress  admitted  the  state  into  the  Union.  In 
November  the  state  approved  the  ten  congressional  amend- 
ments. Virginia  ratified  them  in  December.  Thus  at  the 
close  of  the  year  1791  all  the  states  which  had  participated 
in  the  revolution  had  ratified  the  Constitution  ;  and  all  save 
three  ^  had  approved  ten  of  the  amendments  which  Con- 
gress had  proposed. 

Most  of  the  framers  of  the  Constitution  were  lawyers, 
and  several  possessed  judicial  minds  of  the  highest  order. 
The  article  on  the  judiciary,  we  are  informed  by  Gouver- 
neur  Morris,  received  most  critical  attention,  and  passed 
from  the  hands  of  the  convention  to  the  committee  on 
arrangement  and  style  in  as  perfect  a  form  as  men  famil- 
iar with  political  theories  and  grounded  in  legal  practice 
could  suggest.  But  on  the  subject  of  the  judiciary,  con- 
flicting opinions  had  been  maintained  with  so  much  pro- 

1  January  10,  1791 ;  105  to  4. 

'  Massachusetts,  Connecticut,  Georgia. 


THE    UNITED    STATES  loi 

fessional  astuteness,  says  Gouverneur  Morris,  that  it 
became  necessary  for  him  only  to  select  the  phraseology 
when,  as  a  member  of  the  committee  on  arrangement  and 
style,  the  rough  draft  of  the  Constitution  was  put  into  his 
hands  with  instructions  to  write  it  in  final  form.  He 
wished  not  to  alarm  others  or  to  shock  their  self  love, 
and  yet  to  express  his  own  notions.  The  result  was  that 
the  article  on  the  judiciary  "  was  the  only  part  that  passed 
without  cavil."  ^  In  the  ratifying  conventions  the  article 
on  the  judiciary  was  viewed  with  alarm  by  the  Anti-Fed- 
eralists. They  feared  that  the  jurisdiction  of  the  federal 
courts  might  extend  to  suits  between  citizens  of  a  state 
and  another  state.  Marshall,  in  the  Virginia  convention, 
had  quieted  George  Mason's  fears  on  this  point  by  saying 
that  it  was  not  rational  to  suppose  that  a  sovereign  power,  X 
like  a  state,  could  be  dragged  before  a  federal  court.  A 
state  might  be  a  plaintiff,  but  it  could  not  be  made  a 
defendant  in  a  suit  brought  by  an  individual.  If  he  had 
a  just  claim  against  the  state,  it  was  to  be  presumed  that 
upon  application  to  its  legislature  he  would  obtain  satis- 
faction.^ 

The  same  idea  was  held  by  Hamilton,  who  declared 
that  the  alarm  of  the  Anti-Federalists  was  upon  very 
mistaken  grounds,   as  it  was  inherent  in  the  nature  of  .X^ 
sovereignty  not  to  be  amenable  to  the  suit  of  an  individual 
without  its  own  consent.     This,  he  said,  was  the  general 
sense  and  practice  of  mankind  and  the  exemption  was 
enjoyed  by  the  government  of  every  state  in  the  Union 
as    one    of    the    attributes    of    sovereignty.     Such    suits 
against  a  state  would  be  contrary  to  the  spirit  and  pur- 
pose of  the  Constitution.     Recoveries  could  be  enforced 
only  by  waging  war  against  a  state,  and  it  was  altogether      >/ 
forced  and  unwarrantable  to  ascribe  to  the  federal  courts,       A 
by  mere  implication  and  in  contravention  of  pre-existing 
rights  of  the  state  governments,  a  power  which  would 
involve  such  consequences.' 

The  opinions  of  Marshall  and  Hamilton  are  sufficient, 
if  taken  in  connection  with  the  time  and  place  of  their 

1  Sparks's  Morris,  vol.  iii,  p.  323. 

2  Elliot,  vol.  iii,  p.  555. 

«  "The  Federalist,"  Nos.  XXXII,  LXXXI.^ 


I02     A    CONSTITUTIONAL    HISTORY    OF 

utterance,  to  establish  the  fact  that  the  framers  of  the 
Constitution  did  not  believe  that  a  sovereign  state  could 
be  sued  by  an  individual  or,  to  use  a  phrase  of  the  time, 
could  be  dragged  before  a  federal  court.  The  full  power 
of  the  general  government  was  behind  the  states  to  sup- 
port them  in  their  judicial  action,  but  was  not  behind  the 
individual  to  support  him  in  an  action  against  a  state. 
Through  all  the  debates  in  the  ratifying  conventions  ran 
the  claim  that  the  states  would  gain  by  assenting  to  the 
Constitution.  Randolph,  when  presenting  the  Virginia 
plan  in  Philadelphia,  spoke  of  the  jealousy  of  the  states 
respecting  their  sovereignty  as  a  fact  familiar  to  all. 
Without  attempting  to  declare  the  truth  or  falsity  of  the 
doctrine  that  the  states  were  sovereign,  we  must  conclude 
that  it  was  unquestionably  the  ruling  idea  in  1788.  Time 
might  prove  the  doctrine  impracticable  as  a  working 
principle,  but  the  strength  of  the  argument  lay  with  the 
state-sovereignty  school  at  the  time  the  national  govern- 
ment was  formed.  It  dominated  the  ratifying  conventions  ; 
it  had  been  freely  expressed  in  the  federal  convention. 
The  national  idea  as  it  is  now  understood  had  to  be 
worked  out  by  the  harsh  tests  of  administration.  It  was 
not  conceived  at  the  time  the  Constitution  was  made. 
It  is  a  product  of  a  later  time.  If  the  idea  of  state  sov- 
ereignty should  prove  destructive  of  the  ends  compre- 
hensively proposed  in  the  preamble  of  the  Constitution,  — 
a  more  perfect  union,  justice,  domestic  tranquillity,  com- 
mon defence,  and  the  general  welfare,  —  then  ultimately 
the  idea  must  be  abandoned.  The  Fathers,  as  we  fre- 
quently call  our  early  statesmen,  were  opportunists,  as 
all  men  must  be  in  revolutionary  times.  Speaking  of 
the  work  of  the  Fathers,  Mr.  Lincoln,  in  his  Cooper 
Institute  speech,  undoubtedly  laid  down  the  true  principle 
to  follow  in  interpreting  their  work :  "  I  do  not  mean 
to  say  that  we  are  bound  to  follow  implicitly  in  whatever 
our  Fathers  did ;  to  do  so  would  be  to  discard  all  the 
lights  of  current  experience,  to  reject  all  progress,  all 
improvements.  What  I  do  say  is,  that  if  we  would 
supplant  the  opinions  and  policy  of  our  Fathers  in  any 
case,  we  should  do  so  upon  evidence  so  conclusive  and 
argument  so  clear  that  even  their  great  authority  fairly 


THE   UNITED    STATES  103 

considered  and  weighed  cannot  stand."  ^  Time  alone 
could  tell  whether  the  evidence  would  ever  be  so  con- 
clusive and  the  arguments  so  clear  that  the  state-sov- 
ereignty doctrines  of  the  Fathers  could  no  longer  be 
sufifered  to  prevail.  There  can  be  no  doubt  that  when 
the  Constitution  was  adopted  it  was  with  the  understand- 
ing that  a  sovereign  state  could  not  be  sued  in  a  federal 
court  without  its  own  consent.- 

But  among  the  Fathers  there  were  some  who  did  not 
hold  this  idea,  and  among  them  John  Jay  and  James 
Wilson,  who,  it  will  be  remembered,  were  appointed_  by 
Washington;  the  one  chief -justice,  the  other  an  associate 
justice  of  the  supreme  court.  In  1792,  Alexander  Chis- 
holm,  a  citizen  of  North  Carolina,  brought  suit  against 
the  state  of  Georgia  in  the  supreme  court  of  the  United 
States,  and  thus  "  a  question  of  uncommon  magnitude, 
whether  such  a  suit  could  be  maintained,"  became  an 
issue.  The  opinion  of  the  court  was  given  by  Wilson. 
The  question,  he  said,  was  whether  the  people  of  the 
United  States  formed  a  nation?  He  answered  it  accord- 
ing to  his  understanding  of  the  principles  of  general 
jurisprudence,  of  the  laws  of  nations,  and  of  the  consti- 
tutions and  laws  of  the  states.  From  the  first  two  he 
developed  the  general  notion  of  sovereignty  and  then 
proceeded  to  prove  that  the  federal  Constitution  vested 
sovereignty  in  the  United  States  and  clearly  gave  the 

1  Lincoln's  Works,  vol.  i,  p.  604. 

2  Delaware  in  its  second  constitution.  1792,  declared  that  suits  might 
be  brought  against  the  state  as  the  law  prescribed ;  and  Tennessee,  in 
1796,  authorized  such  suits  with  the  proviso  th'&.t  it  must  be  brought  by 
its  own  citizens.  See  Delaware  constitution,  1831-1S94 ;  Tennessee, 
1834-1870.  The  state  constitutions  authorizing  legislation  for  bringing 
suits  against  the  state  are  Wisconsin,  1S48,  Art.  IV,  sec.  27  ;  California, 
1850,  Art.  XI,  sec.  1 1  ;  Kentucky,  1S50,  Art.  VIII,  sec.  6  ;  1890,  sec.  231 ; 
Indiana,  1851,  Art.  IV,  sec.'24;  Nevada,1864,  Art.  IV,  sec.  22;  Mis- 
souri, 1865,  Art.  IV,  sec.  21 ;  Florida,  1868,  Art.  IV,  sec.  19;  1885,  Art.  Ill, 
sec.  22;  Mississippi,  186S.  Art.  XV,  sec.  21  ;  South  Carolina,  1868,  Art. 
XIV,  sec.  4;  1895,  Art.  XVII,  sec.  2;  Alabama,  1867,  Art.  I,  sec.  16; 
Pennsylvania,  1873,  Art.  IX,  sec.  11  ;  Washington,  1889,  Art.  II,  sec.  26; 
North  Dakota,  TS89,  Art.  I,  sec.  22;  Wyoming,  1889,  Art.  I, sec.  8;  such 
suits  were  forbidden  by  Illinois  constitution,  1870,  Art.  IV,  sec.  26  ; 
Alabama,  1875,  Art.  I,  sec.  15;  Arkansas,  1874,  Art.  V,  sec.  20,  declares 
that  the  state  shall  never  be  made  defendant  in  any  of  her  courts.  But 
see  Curran  v.  Arkansas  et  al-,  15  Howard,  304,  309;  Clark  v.  IJarnard, 
108  United  States,  436,  447  ;  Beers  et  al.  v.  Arkansas,  20  Howard,  527. 


I04     A    CONSTITUTIONAL    HISTORY    OF 

court  jurisdiction  over  a  state  in  the  Union.  The  state 
of  Georgia  was  therefore  amenable  to  its  jurisdiction. 
He  took  issue  directly  with  both  Marshall  and  Hamilton, 
and  claimed  that  the  jurisdiction  of  the  supreme  court 
over  a  state  was  explicitly  declared  in  the  Constitution. 
A  state  could  be  made  a  defendant  before  the  court; 
therefore  it  was  amenable.^  Jay,  the  chief -justice,  sup- 
ported him  in  an  elaborate  decision.  He  traced  the 
history  of  the  country  from  the  outbreak  of  the  revolu- 
tion, and  agreed  with  Wilson  that  the  controversy  before 
the  court  fell  within  the  exact  language  of  the  Constitu- 
tion. He  went  further  than  Wilson,  however,  and  held 
that  not  only  a  state  but  the  United  States  might  be  sued 
by  any  citizen  with  whom  it  might  be  in  controversy,  but 
with  this  difference:  that  in  case  of  an  action  against 
the  United  States  there  was  no  power  which  the  courts 
could  call  to  their  aid  to  compel  execution  of  the  court's 
decree.  Therefore  the  case  of  a  state  and  that  of  the 
United  States  were  very  unlike.  But  a  state  was  suable 
by  citizens  of  another  state. 

This  was  a  new  and  an  alarming  doctrine,  and  its  truth 
was  denied  by  Justice  Iredell  in  one  of  the  most  famous 
opinions  in  our  legal  history.  He  controverted  the  opin- 
ions of  Wilson  and  Jay  point  by  point.  He  held  that 
the  states  were  successors  to  the  crown  and,  like  the 
crown,  could  be  petitioned  but  not  sued.  He  denied  that 
cither  the  Constitution  or  the  act  establishing  the  federal 
courts  ^  authorized  Wilson's  conclusions.  The  power  of 
the  court  was  to  be  strictly  construed.  The  common  law, 
he  said,  gave  no  precedent  for  Wilson's  construction. 
Every  state  in  the  Union,  save  in  those  instances  in  which 
its  sovereignty  had  been  expressly  delegated  to  the  United 
States,  was  as  completely  sovereign  as  were  the  United 
States  in  respect  to  the  powers  surrendered  to  them. 
"  The  United  States,"  said  he.  "  are  sovereign  as  to  all 
the  powers  of  government  actually  surrendered ;  each 
state  in  the  Union  is  sovereign  as  to  all  the  powers 
reserved."    Reasoning  thus  from  the  British  Constitution, 

*  Chishnlm  71.  denrGjia,  2  Dallas,  419  (1703). 

2  Act  of  Septenibir  24,  1789;  Statutes  at  Large,  vol.  i,  p.  73. 


THE    UNITED    STATES  105 

the  common  law,  the  practice  of  the  colonial  govern- 
ments, the  strict  construction  of  the  Constitution,  and  of 
the  judiciary  act  of  1789,  he  reached  the  conclusion  that 
the  states  were  sovereign  and  could  not  be  sued.  The 
only  remedy  was  by  petition  to  the  state  legislature.  But 
Iredell's  opinion  was  not  the  decision  of  the  court ;  that 
had  declared  that  a  state  was  suable  in  the  federal  courts, 
and  it  was  a  most  startling  conclusion  of  the  whole 
matter.  It  practically  reversed  the  Fathers,  ignored  the 
opinions  of  the  ratifying  conventions  and  also  "  The  Fed- 
eralist "  itself. 

The  decision  was  handed  down  on  the  i8th  of  Feb- 
ruary, 1793,  and,  on  the  following  day,  Sedgwick  of 
Massachusetts,  gave  notice,  in  the  House  of  Representa- 
tives, that  he  would  soon  move  a  resolution  for  amend- 
ing the  Constitution,  so  as  to  protect  the  states  from  being 
sued  in  federal  courts.  On  the  20th,  the  resolution,  in 
the  form  of  an  amendment,  was  offered  in  the  Senate,^ 
but  it  slumbered  for  a  year,  till,  on  the  2d  of  January, 
1794,  it  was  again  brought  up,  was  discussed  briefly,  and 
was  passed,  on  the  14th,  by  a  vote  of  twenty-three  to  two. 
On  that  day  it  was  read  in  the  House  for  the  first  time, 
but  it  was  the  4th  of  March  ^  before  it  finally  passed."'' 
Three  years  elapsed  before  the  requisite  number  of  states 
adopted  it.  Its  ratification  was  announced  by  President 
Adams  on  the  8th  of  January,  1798.*  There  was  strictly 
no  precedent  for  the  amendment  in  any  which  had  been 
demanded  by  the  ratifying  conventions  or  in  any  of  the 
state  constitutions.  The  nearest  approach  to  a  precedent 
was  one  of  the  amendments,  demanded  by  Virginia,  North 
Carolina,  and  Rhode  Island,  relating  to  the  jurisdiction  of 
the  United  States  courts  in  cases  arising  after,  but  not 
before,  the  ratification  of  the  Constitution.^ 

Though  there  was  no  immediate  precedent  for  the 
amendment,  its  spirit  and  purpose  may  be  found  in  the 

^  Annals,  1793,  P-  651.  2  id.  p.  ^77. 

'  By  a  vote  of  81  to  9.  The  language  of  the  amendment  was  suggested 
by  Albert  Gallatin. 

*  Richardson,  vol  i,  p.  260,  and  see  Adams's  special  direction  to  Pinck- 
ney,  in  Works,  vol.  viii,  p.  552. 

*  In  Virginia,  Elliot,  vol.  iii,  p.  661  ;  in  North  Carolina,  •'  Documentary 
History  of  the  Constitution,"  vol.  ii,  p.  272.     Elliot,  vol.  i,  p.  336. 


io6     A    CONSTITUTIONAL   HISTORY    OF 

ideas  of  state  sovereignty  prevailing  in  the  eighteenth 
century.  In  the  act  of  the  assembly  of  Connecticut  of 
October  lO,  1776,  which  was  the  response  of  that  colony 
to  the  suggestion  of  Congress  to  take  up  civil  government, 
the  state  was  described  as  free,  sovereign,  and  independ- 
ent. The  Constitution  of  Massachusetts  of  1780  made 
a  similar  declaration,  as  did  that  of  New  Hampshire  of 
1784.  The  treaty  of  peace  with  England  of  the  pre- 
ceding year  ^  mentioned  the  thirteen  states  each  as  being 
free,  sovereign,  and  independent,  and  this  conception 
was  a  part  of  the  unwritten  constitution  of  states  outside 
of  New  England.  No  southern  state  used  the  word 
"  sovereign  "  in  its  constitution,  but  the  opinions  of  south- 
ern statesmen  and  of  southern  people  respecting  state 
sovereignty  were  unwritten  law.  The  government  of 
the  United  States  was  popularly  believed  to  be  a  confed- 
eration of  sovereign  states,-  though  a  few  members  of 
the  federal  convention,  like  King  and  Hamilton,  clearly 
pointed  out  that  the  states  were  not  sovereign  in  the 
sense  in  which  the  general  government  was  sovereign.^ 
The  result  of  such  diverse  opinions  was  a  compromise: 
that  the  states  possessed  residuary  sovereignty,*  and  with 
this  understanding  the  Constitution  was  ratified.  The 
Anti-Federalists  held  to  a  man  that  the  sole  purpose  of 
forming  the  general  government  had  been  to  preserve  the 
sovereignty  of  the  states.^  When,  therefore,  in  1793, 
the  supreme  court  ruled  that  the  states  were  not  sovereign, 
but  could  be  brought  before  a  federal  court  like  an  indi- 
vidual, the  country  took  alarm  and  the  eleventh  amend- 
ment was  the  direct  consequence. 

No  part  of  the  national  plan  of  government  was  more 
difficult  to  settle  than  that  on  the  executive,  and  the  article 
on  the  subject  was  almost  the  last  to  be  completed.  The 
members  greatly  differed  as  to  whether  the  executive 
should  be  single  or  plural ;  for  life  or  for  a  term  of  years ; 
and  especially  did  they  dififer  as  to  the  manner  of  choos- 
ing him.  Finally,  they  forsook  all  state  precedents  and 
adopted   a   method   of   choosing,   which   was   novel   and 

1  September  3,  1783,  Article  I ;  Treaties  and  Conventions,  p.  376. 

2  Klliot,  vol.  V,  p.  176.  3  Id.   vol.  V,  pp.  201,  212. 
*  "  The  Federalist,"  No.  LXXII.  ^  Elliot,  vol.  v,  p.  249. 


THE   UNITED   STATES  107 

experimental.  Though  bearing  some  analogy  to  the 
method  of  choosing  state  senators  in  Maryland,  it  will 
be  found,  upon  examination,  that  that  method  and  the 
one  finally  adopted  by  the  convention  have  little  in  com- 
mon. The  difficulty  consisted  in  choosing  a  national 
officer  by  federal  methods.  If  the  new  government  was 
wholly  federal,  the  method  of  the  election  of  the  President 
by  state  legislatures  was  not  the  proper  procedure ;  if 
it  was  wholly  national,  he  should  be  elected  by  popular 
vote,  but  as  the  government  was  partly  federal  and  partly 
national,  the  method  must  be  a  compromise.  The  method 
finally  adopted  gave  general  satisfaction  and  was  almost 
the  only  part  of  the  system  which  escaped  censure.^  But 
the  method  did  not  distinguish  between  candidates  for  the 
presidency  and  the  vice-presidency,  and,  in  consequence, 
the  results  of  an  election  might  be  uncertain.  The  obvious 
defect  was  the  omission  from  the  plan  of  a  requirement 
lo  designate  by  the  electoral  votes  the  candidate  for  Pres- 
ident and  the  candidate  for  Vice-president.  But  this  end, 
which  seemed  to  have  escaped  the  attention  of  the  con- 
vention, was  finally  reached  by  events  quite  accidental. 

The  framers  of  the  Constitution  gave  no  sign  that  they 
expected  the  administration  of  the  government  to  fall 
into  the  hands  of  parties  or  the  choice  of  officials  to 
become  a  party  matter.  The  Vice-president  was  consid- 
ered a  superfluous  officer,  especially  by  the  Anti-Fed- 
eralists. The  framers  evidently  had  great  confidence  in 
the  virtue  of  that  body  of  men  whom  we  call  the  electoral 
college.  They  considered  them  for  a  time  to  be  the 
agents  of  the  states,  chosen  by  the  people  to  name  a 
president.  Wilson  advocated  his  election  by  popular 
vote,  but  the  proposition  was  not  considered.  Distrust 
of  popular  government  led  the  framers  to  put  the  choos- 
ing of  the  President  and  Vice-president  into  the  hands  of 
a  special  body  of  men.  In  case  two  persons  received 
each  a  majority,  and  the  same  number  of  votes,  the 
highest  vote,  by  states,  should  elect  the  President ;  and  if 
there  then  remained  two  candidates  with  equal  votes,  the 
Senate  should  choose  the  Vice-president.     The  evident 

1  "The  Federalist,"  No.  LXVIII, 


io8     A    CONSTITUTIONAL   HISTORY    OF 

purpose  here  was  to  secure  the  choice  of  these  two  officers 
by  a  federal  act.  As  long  as  Washington  lived  and  would 
accept  the  office  of  President,  there  was  little  doubt  who 
its  incumbent  would  be.  But  the  distribution  of  the 
electoral  vote,  in  1789  among  twelve  persons,  in  1792 
among  five,  and  in  1796  among  thirteen,  intimated  from 
the  beginning  that  unless  public  opinion  was  explicit  and 
some  person  was  the  unmistakable  choice  for  President, 
the  vote  was  likely  to  be  scattered,  and  that  elections  by 
the  House  might  prove  the  rule  instead  of  the  exception. 
The  framers  could  not  well  have  anticipated  this  con- 
dition of  things.  The  debates  in  the  federal  convention 
indicate  that  the  framers  believed  that  the  college  could 
always  find  one  man  of  dominating  popularity,  and 
another  for  second  place  sufficiently  well  known  to  satisfy 
the  majority  of  the  electors.  Time  did  not  realize  this 
expectation.  The  men  who  received  electoral  votes  were 
the  favorite  sons  of  states,  and  so  strong  was  the  idea  of 
state  sovereignty  that  it  was  almost  impossible  that  any 
successor  to  Washington  should  at  all  approach  him  in 
national  reputation.  There  was  the  probability  of  a  dis- 
puted election  in  1796,  when  it  was  doubtful  whether 
Adams,  Jefferson,  or  Thomas  Pinckney  would  be  chosen. 
It  was  soon  known  that  Adams  had  seventy-one  votes, 
Jefferson  sixty-eight,  and  Pinckney  fifty-nine.  The 
result,  therefore,  was  a  Federalist  for  President  and  a 
Democratic-Republican  for  Vice-president. 

The  incongruity  of  a  divided  political  responsibility 
docs  not  seem  to  have  occurred  to  many  at  the  time,  but 
just  two  months  from  the  day  of  election  ^  William 
Smith,  of  South  Carolina,  offered  a  resolution  in  the 
House  that  the  Constitution  be  amended  so  as  to  prevent 
the  inconvenience  that  might  arise  from  the  prevailing 
mode  of  choosing  the  President  and  Vice-president,  and  so 
to  carry  into  effect  the  general  intention  of  the  electors. 
The  motion  was  made  a  month  before  the  electoral  vote 
was  counted,  and  received  no  further  attention  than  to 
be  ordered  printed.  Not  one  state  gave  its  full  vote  for 
Adams  and  Jeflferson,  and  the  four  that  cast  electoral 
votes    for    them    also    supported    six    other    candidates. 

1  January  8,  1797,  Annals,  p.  1824. 


THE    UNITED    STATES  109 

Adams  received  the  entire  electoral  vote  of  eig^ht  states ; 
Jefferson  of  four ;  Pinckney  of  five ;  Burr  and  Ellsworth 
each  of  two,  and  Clinton  of  one.  Considering  the 
strength  of  the  doctrine  of  state  sovereignty  at  the  time, 
it  is  not  surprising  that  there  was  dissatisfaction  with  a 
system  which  gave  the  country  a  President  who  was  the 
first  choice  of  only  one  half  of  the  states,  and  a  Vice-presi- 
dent who  was  the  choice  of  only  one-fourth  of  them,  and 
yet  between  which  two  candidates  there  was  a  difference 
of  only  three  votes. 

The  result  of  the  election,  in  1796,  displeased  the  Fed- 
eralists, for  they  had  planned  to  elect  Adams  and  Thomas 
Pinckney.  The  federalist  region  lay  north  and  east  of 
Pennsylvania  but  included  Delaware.  Political  sentiment 
in  the  remaining  portion  of  the  country  was  strongest  for 
Jefferson  and  Burr.  Though  there  were  no  formal  plat- 
forms or  nominations,  there  was  a  more  or  less  common 
understanding  that  Adams  and  Jefferson  represented  two 
widely  different  political  schools.  The  election  of  both, 
therefore,  raised  many  apprehensions. 

That  a  month  before  the  counting  of  the  electoral  vote, 
a  resolution  should  be  offered  in  Congress  to  amend  the 
Constitution,  so  that  electors  should  designate  their  choice 
for  President  and  Vice-president,  must  be  accepted  as 
evidence  that  the  public  mind  was  not  at  rest  on  the 
subject.  The  resolution  was,  however,  soon  forgotten; 
three  years  passed,  and  Adams's  stormy  administration 
was  drawing  to  a  close,  when  Abiel  Foster,  a  representa- 
tive from  New  Hampshire,  renewed  the  electoral  amend- 
ment on  the  i6th  of  February,  1799.  Two  weeks  later, 
by  a  vote  of  two  to  one,  the  House  refused  to  refer  the 
resolution  to  a  committee  of  the  whole.^  On  the  23d 
of  January,  1800,-  James  Ross,  of  Pennsylvania,  moved 
in  the  Senate  the  appointment  of  a  special  committee  to 
report  a  bill  for  deciding  disputed  elections  for  President 
and  Vice-president.  The  bill  passed  the  Senate  on  the 
28th  of  March,  was  amended  both  in  the  House  and  the 
Senate,  but  was  at  last  rejected  by  the  House  by  a  vote 
of  seventy-three  to  fifteen. 

While  the  Ross  resolution  was  under  consideration,  the 

^  Annals,  1799,  p.  2919.  *  Annals,  p.  29. 


no     A    CONSTITUTIONAL   HISTORY    OF 

question  of  a  constitutional  amendment  to  regulate  the 
election  of  President  and  Vice-president  came  before 
the  House  on  the  4th  of  February.  Its  purpose  was  to 
require  that  the  electoral  vote  be  designated,  but  it  was 
buried  in  committee  of  the  whole.  John  Nicholas,  of 
Virginia,  on  the  14th  of  March  proposed  as  an  amend- 
ment the  division  of  each  state  into  a  number  of  districts 
corresponding  to  its  number  of  electors,  but  his  resolution 
was  sent  back  adversely  in  an  elaborate  report  that  no 
change  in  the  method  prescribed  by  the  Constitution  was 
expedient.^ 

Meanwhile  the  presidential  election  of  1800  had 
occurred ;  its  results  were  known  and  the  first  disputed 
election  had  arisen.  This  condition  of  affairs  had  been 
brought  about  largely  by  the  party  intrigues  of  Hamilton, 
and  other  leading  Federalists,  to  make  Charles  C.  Pinck- 
ney  President  and  to  bring  Adams  to  the  second  place. ^ 
The  formal  ballot  of  electors,  on  the  nth  of  February, 
gave  seventy-three  votes  to  Jefferson ;  seventy-three  to 
Burr ;  sixty-five  to  Adams,  sixty-four  to  Pinckney,  and 
one  to  John  Jay.  The  election  of  a  President,  therefore, 
devolved  on  the  House.  On  the  i8th,  at  one  o'clock,  the 
thirty-sixth  ballot  was  taken ;  ten  states  had  voted  for 
Thomas  Jefferson,  four  for  Burr,  and  two  had  cast  blank 
ballots.^  The  House  had  made  Jefferson  President,  and 
Burr,  having  received  the  next  greatest  number  of  votes 
in  the  college,  was  Vice-president.  Thus  events  speedily 
disclosed  that  the  danger  which  had  been  discussed 
three  years  before  was  both  real  and  serious.  At  the 
election  in  1800  sixteen  states  voted,  in  eight  of  which 
the  electors  were  chosen  by  the  legislatures,  and  in  eight 
by  the  voters  ;  but  the  mere  method  of  choosing  presiden- 
tial electors  had  little  bearing  on  the  final  result.  In  Con- 
necticut the  electors,  appointed  by  the  legislature,  had 
voted  for  Pinckney ;  the  South  Carolina  electors,  appointed 
in  like  manner,  had  voted  for  Jefferson  and  Burr.  The 
New  Hampshire  electors,  chosen  by  popular  vote,  had 
cast  their  ballots  for  Adams  and  Pinckney,  but  the  electors 

1  Annals,  pp.  941-946. 

2  "  Life  and  Works  of  John  Adams,"  vol.  i,  pp.  576-597. 
8  Annals,  pp.  1031-1033. 


THE   UNITED    STATES  iii 

of  Kentucky  and  Tennessee,  chosen  in  the  same  manner, 
had  voted  for  Jefferson  and  Burr.  Thus  the  Union  on 
party  Hnes  was  divided  into  eight  repubhcan  and  six 
federahst  states.  The  remaining  states  were  partly  fed- 
eraUst  and  partly  republican.  Though  there  were  no 
platforms  or  nominating  conventions,  Adams  and  Pinck- 
ney  were  the  recognized  federalist  candidates,  and  Jef- 
ferson and  Burr  the  democratic-republican.  Testing  the 
election  in  the  House  by  the  electoral  vote  of  the  states, 
the  choice  of  Jefferson  and  Burr  more  fairly  expressed 
the  will  of  the  country  than  did  that  of  Adams  and  Jef- 
ferson in  1796. 

However,  the  fact  most  distressing  to  the  Federalists 
remained,  —  that  they  had  failed  to  bring  in  either  of 
their  candidates.  The  rumor  spread  that  the  election  in 
the  House  had  been  brought  about  by  collusion,  and  min- 
gled with  this  tale,  which  many  of  the  Federalists  took 
no  pains  to  correct,  were  the  mutterings  of  the  friends 
of  Burr,  who  had  confidently  expected  the  first  place 
for  him.  Thus,  suddenly  the  constitutional  method  of 
choosing  the  chief  magistrate  was  confused  with  the 
animosities,  the  schemes,  and  the  disappointments  of  party 
politics.  The  question  thus  ceased  to  be  abstract,  but 
became  one  of  practical  politics.  The  Constitution  had 
proved  defective  in  an  essential  part.  Jefferson  had  been 
comforted,  in  the  prospect  of  his  missing  the  presidency, 
that  though  "  the  federal  government  would  have  been 
in  the  situation  of  a  clock  or  watch  run  down,  there  was 
no  idea  of  force  nor  of  any  occasion  for  it.  A  convention, 
invited  by  the  republican  members  of  Congress  with  the 
virtual  President  and  Vice-president,  would  have  been  on 
the  ground  in  eight  weeks ;  would  have  repaired  the  Con- 
stitution, and  wound  it  up  again."  ^  As  the  Senate  con- 
sisted of  nineteen  Democratic-Republicans  and  thirteen 
Federalists,  and  the  House  of  seventy-one  Republicans 
and  thirty-four  Federalists,  and  as  Jefferson  was  Vice- 
president,  the  Republican  members  on  the  ground  were 
a  factor  to  be  reckoned  with. 

1  Jefferson  to  Priestley,  March  21,  1801  ;  Works  (Ford's  Edition), 
vol.  viii,  p.  322. 


112     A    CONSTITUTIONAL   HISTORY    OF 

An  amendment  of  some  kind,  regulating  the  election 
of  the  President  and  the  Vice-president,  now  seemed 
imminent,  but  another  year  passed  before  further  efifort 
toward  one  was  made.  On  the  12th  of  April,  1802, 
DeWitt  Clinton  in  the  Senate  proposed  as  an  amendment 
that  the  persons  voted  for  as  President  and  Vice-president 
be  particularly  designated,^  but  the  matter  was  again 
postponed.  Meanwhile  the  House  was  entertaining 
amendments,  and  one  of  them  providing  for  the  desig- 
nation of  candidates  was  carried,  on  the  2d  of  May,  by 
a  vote  of  forty-seven  to  fourteen ;  but  the  Senate  refused 
to  concur.-  Further  procedure  was  prevented  by  the 
adjournment  of  Congress.  The  defeated  measure  was 
brought  up  again  on  the  3d  of  January  by  Michael  Leib, 
of  Pennsylvania.  Bayard,  of  Delaware,  called  for  a  com- 
mittee on  the  subject  on  the  8th  of  February;  and  Gris- 
wold,  of  Connecticut,  recommended  the  provision  on  the 
9th ;  but  the  House,  without  a  decision  on  the  matter,  dis- 
charged the  committee  and  the  subject  was  dropped  for 
the  remainder  of  the  session. 

The  steady  recurrence  of  the  proposition  to  amend 
was  a  sign  of  the  times.  When,  on  the  17th  of  October, 
1803,  the  eighth  Congress  assembled,  nearly  six  years 
had  passed  since  the  first  amendment  to  designate  the 
candidates  had  been  proposed.  On  the  first  day  of  the 
new  session,  Dawson,  of  Virginia,  renewed  the  motion 
which  Smith  had  made  in  1797,  and  on  the  next  day, 
in  committee  of  the  whole,  the  House  set  itself  seriously 
to  its  consideration.-^  The  amendment  merely  directed 
the  designation  of  the  electoral  votes,  but  Nicholson,  of 
Maryland,  detecting  the  imperfection,  proposed  that 
Dawson's  amendment  be  changed  so  that  the  person 
receiving  the  highest  number  of  votes  for  Vice-president 
should  thereby  be  elected,  unless  the  vote  for  two  or 
more  was  equal,  in  which  case  the  Senate  should  choose. 
Clopton,  of  Virginia,  wished  the  choice,  when  made  by 
the  House,  limited  to  two  instead  of  to  five  candidates, 
as    the    Constitution    provided.      The    matter    was    then 

1  Annals,  p.  259.  2  jj   p   ■^04. 

*  Annals,  Eighth  Congress,  First  Session,  372. 


THE    UNITED    STATES  113 

referred  to  a  committee  of  seventeen,  along  with  another 
amendment  for  districting  the  country  for  presidential 
electors.  In  the  course  of  the  debate  a  point  of  order 
arose,  and  the  Speaker,  Nathaniel  Macon,  of  North  Caro- 
lina, ruled  that  a  simple  majority  is  competent  in  Congress 
to  decide  all  matters  preliminary  to  the  final  adoption  of 
constitutional  amendments/ 

On  the  226,  Dawson  proposed  that  in  cases  when  the 
election  went  to  the  House,  the  choice  should  be  from  the 
three  highest  on  the  list,  but  when  the  Vice-president 
was  chosen  by  the  Senate,  the  choice  should  be  from  the 
two  highest.  The  select  committee  accepted  this,  but  the 
limitation  to  the  House  of  three  candidates  instead  of 
five,  at  once  raised  the  question  of  the  limitation  of  the 
rights  of  the  small  states.  The  debate  soon  showed  that 
there  was  little  objection  to  an  amendment  of  some  kind, 
but  that  there  was  great  objection  to  changing  the  number 
of  candidates  from  five  to  three.  The  friends  of  the 
larger  number  carried  the  day  by  a  vote  of  fifty-nine  to 
forty-seven ;  the  amendment  was  ordered  engrossed  and 
passed  to  a  third  reading.  The  debate  is  of  interest 
because  of  its  elucidation  of  political  beliefs  prevailing 
at  a  time  when  the  Constitution  was  in  the  infancy  of  its 
administration.  Most  of  its  framers  were  still  living 
and  were  in  public  life,  but  the  men  who  were  now  dis- 
cussing the  proposed  twelfth  amendment  in  Congress 
belonged  to  a  new  generation.  The  current  of  party 
passion  ran  high.  Many  a  devout  Federalist  believed  that 
the  clock  of  government  had  run  down  the  moment  when 
the  House  of  Representatives  chose  JefiFerson  President. 

The  assertion,  during  the  debate,  that  the  proposed 
amendment  would  imperil  state  sovereignty,  if  the  number 
of  possible  candidates  was  changed  from  five  to  three, 
seems  somewhat  curious  to  us  now.  The  advocates  of 
state  sovereignty  agreed  with  Hugher,  of  South  Carolina, 
that  the  Constitution  was  a  compact  and  a  compromise  of 
interests,  and  that  the  federated  government  agreed  upon 
in  1789  was  a  compact  between  thirteen  separate  sov- 
ereignties.    The    inhabitants    of    the    United    States    in 

1  Annals,  Eighth  Congress,  First  Session,  p.  381. 
8 


114     A    CONSTITUTIONAL   HISTORY   OF 

framing  the  Constitution,  said  Hugher,  did  not  act  en 
masse  as  one  people.^  The  balance  between  great  and 
small  states  was  the  issue  when  the  Constitution  had  been 
ratified,  and  any  variation  from  that  balance  would 
endanger  the  states,  Hastings,  of  Massachusetts,  re- 
minded the  House  that  if  the  Constitution  was  to  be 
amended,  the  first  thing  to  receive  attention  was  the 
article  authorizing  the  rendition  of  fugitive  slaves,  which 
operated  with  peculiar  inequality  in  the  northern  and 
eastern  states;  to  which  Matthew  Lyon,  lately  repre- 
senting a  New  England  constituency,  but  now  a  mem- 
ber from  Kentucky,  replied  that  the  sacrifice  of  which 
some  complained  had  been  made  by  the  people  among 
whom  slavery  was  permitted.^  The  resolution  was  then 
adopted.^ 

While  it  was  before  the  House  the  Senate  had  been 
discussing  a  similar  amendment,  proposed  by  Clinton  on 
the  2 1st  of  October.*  Many  modifications  were  sug- 
gested, and  the  whole  subject  was  referred  to  a  select 
committee  of  five,  which  reported  on  the  24th  of  October. 
Dayton,  of  New  Jersey,  wished  to  abolish  the  vice-presi- 
dency. The  debate  dragged  along  until  the  23d  of 
November,  when  the  Senate,  having  decided  that  two- 
thirds  of  the  members  present  could  pass  an  amendment, 
proceeded  seriously  to  consider  the  committee's  report. 

And  first,  it  rejected  both  five  and  two  as  the  number 
from  which  the  House  might  choose  and  agreed  on  three. 
John  Quincy  Adams,  in  a  vigorous  speech,  urged  that 
as  the  House  had  already  accepted  the  number  five,  the 
Senate  ought  to  retain  that  number.  Butler,  of  South 
Carolina,  declared  that  the  change  which  the  Senate  would 
make  would  violate  the  compact  of  the  Union,  and  that 
if  its  amendment  was  not  adopted  the  Federalists  would 
elect  the  next  Vice-president.  This,  he  said,  was  the  pivot 
upon  which  the  whole  matter  turned.  Finally  the  com- 
mittee's report  was  adopted  by  a  vote  of  twenty  to  eleven. 

The  debate  which  followed  was  like  that  which  had 
been  heard  in  the  House.  Hillhouse,  a  senator  from  Con- 
necticut,   asserted    that    if    the    amendment    passed,    the 

1  Annals,  p.  522.  ^  id.  p.  554. 

»  38  to  31.  *  1803,  Annals,  p.  16. 


THE   UNITED    STATES  115 

election  would  go  to  the  House  nine  times  out  of  ten,  and 
that  instead  of  a  comedy,  as  in  the  election  in  1804,  there 
would  be  a  tragedy  in  the  election  of  1808.  So  vigorous 
was  the  objection  to  the  number  three,  it  was  struck  out 
and  the  number  was  left  blank.  This  precipitated  a 
debate  whether  the  change  from  five  to  a  lesser  number 
would  tend  to  diminish  the  rights  of  the  smaller  states. 
On  the  25th  it  was  agreed,  without  debate,  that  the  vote 
in  the  House  should  be  by  states,  following  the  language 
of  the  original  clause,  and  that  the  choice  of  the  Senate 
should  be  restricted  to  the  two  highest  members  on  the 
list.  Some  of  the  federalist  senators  now  made  earnest 
arguments  against  changing  the  Constitution  at  all,  but 
they  were  in  the  minority.  By  a  vote  of  more  than  two 
to  one  it  was  agreed  that  the  number  of  candidates  before 
the  House  should  be  three,  but  this  did  not  determine 
how  the  House  should  proceed  in  case  more  than  three 
candidates  have  the  same  number  of  votes.  So  many 
amendments  were  now  offered  on  the  subject,  all  were 
ordered  printed,  that  the  Senate  might  discover  how  the 
matter  stood,  which  led  Smith,  of  Maryland,  to  ask,  "  Why 
not  throw  dice  for  the  office  of  President,  the  highest 
number  to  win  ?  "  Finally,  it  was  decided  to  insert  the 
number  three  instead  of  five,  and  to  omit  the  clause  limit- 
ing the  period  for  which  a  President  could  be  elected. 
The  Vice-president,  Burr,  declared  that  the  resolution 
had  passed  by  a  two-thirds  vote,  and  it  was  sent  to  the 
House  with  a  request  for  concurrence.^ 

Two  resolutions  had  now  been  passed :  one  by  the 
House,  sent  to  the  Senate  on  the  28th  of  October ;  another 
by  the  Senate,  sent  to  the  House  on  the  ist  of  December. 
The  essential  difference  between  them  was  the  number 
from  which  the  choice  should  be  made.  The  House 
retained  five,  the  original  number  of  the  Constitution ;  the 
Senate  inserted  three,  and  the  provision  that  in  case  no 
President  was  chosen  by  the  House  before  the  4th  of 
March,  the  Vice-president-elect  should  become  President. 

The  Senate  resolution  was  taken  up  in  the  House  on  the 
6th  of  December,-  but  the  Senate  had  paid  no  attention  to 

*  Annals,  p.  2io.  2  jj.   p  6^5. 


Ii6     A    CONSTITUTIONAL    HISTORY    OF 

the  House  resolution.  Objection  was  made  in  the  House 
to  the  Senate  amendment,  —  that  it  had  not  been  passed 
by  the  constitutional  number  of  senators,  for  everybody 
knew  that  only  twenty-two  of  the  thirty-four  members 
of  the  Senate  had  voted  for  it,  but  it  was  finally  decided 
that  as  by  the  Constitution  each  House  keeps  a  journal 
and  determines  its  own  rules  and  regulations,  therefore 
the  House  has  no  authority  to  judge  the  Senate ;  therefore 
the  resolution  had  come  before  it  in  a  proper  form.  In 
this  conclusion  the  House  agreed  by  a  vote  of  thirty-five 
to  eighty-four  and  thus  settled  an  important  question  in 
congressional  procedure.^ 

There  was  a  strong  effort  made  to  abolish  the  office 
of  Vice-president  as  superfluous.  At  last,  after  repeated 
refusals  to  adjourn,  or  to  let  the  committee  of  the  whole 
rise,  the  House  agreed  to  the  Senate  resolution,  but  re- 
fused, by  a  vote  of  eighty-two  to  thirty-five,  to  substitute 
the  number  three  for  five  in  the  report.^  The  Senate 
amendment  was  then  divided  and  the  first  part,  containing 
the  provision  for  designating  the  electoral  vote,  passed  by 
a  vote  of  eighty-five  to  thirty.  The  other  clauses  were 
then  agreed  to  and  the  Speaker,  Macon,  arose  to  put  the 
whole  resolution.  The  Federalists  attempted  to  delay 
the  vote  until  the  next  day.  Randolph  moved  for  an 
immediate  decision  and  the  House  sustained  him,  though 
not  by  a  strictly  party  vote. 

On  the  8th,  the  debate  was  resumed.  Lowndes,  Ran- 
dolph, and  a  few  other  behevers  in  state  sovereignty 
took  occasion  carefully  to  outline  its  doctrines.  Through- 
out the  discussion  little  was  said  of  national  sovereignty, 
for  as  yet  little  was  thought  or  known.  Campbell,  of 
Tennessee,  observed  that  the  government  was  formed  by 
the  people  of  the  United  States  in  their  national  capacity 
and  not  by  the  several  states  convened  in  their  state 
capacities,  in  proof  of  which  he  cited  the  opening  words 
of  the  preamble,  "  We  the  people  of  the  United  States,"  ^ 
but  he  was  speedily  corrected  by  many  members,  who 
informed  him  that  the  Constitution  was  adopted  by  the 
states  acting  in   their  corporate  capacity,   and  that  the 

1  Annals,  p.  663.  ^  Id.  p.  683. 

8  Id.  pp.  718-727. 


THE   UNITED    STATES  117 

proposed  amendment  could  not  be  adopted  "  without  in 
fact  destroying  the  very  basis  of  the  Confederacy."  At 
last  the  debate  came  to  an  end,  after  state  rights,  state 
sovereignty,  the  Constitution  a  compact  between  the  states, 
intrigue  and  corruption  in  elections,  the  relative  merits  of 
three  and  five  candidates,  the  use  and  the  uselessness 
of  the  office  of  Vice-president,  the  popular  will  and  the 
danger  of  innovation  had  all  been  touched  on.  Then  the 
vote  was  taken.  Forty-two  stood  for  the  resolution  and 
forty-two  against  it.  The  casting  vote  of  the  Speaker, 
Nathaniel  Macon,  carried  the  amendment.^ 

On  the  following  day,  the  12th  of  December,-  the 
Senate  concurred  and  the  joint  resolution  was  sent  forth 
to  the  states  for  ratification.  It  made  rapid  progress 
through  the  legislatures,  for  the  public  mind  had  long 
been  made  up.  On  the  25th  of  September,  1804,  Madi- 
son, then  Secretary  of  State,  formally  proclaimed  that  it 
had  become  a  part  of  the  Constitution.^  Its  adoption  may 
be  said  to  have  completed  the  Constitution  as  a  piece  of 
eighteenth  century  work. 

When  the  first  ten  amendments  passed  Congress,  all  the 
f ramers  of  the  Constitution,  save  one,  were  living ;  eleven 
were  members  of  the  Senate,  and  eight  of  the  House. 
One  was  President  of  the  United  States,  —  Washington, 
—  and  his  signature  was  affixed  to  the  twelve  amend- 
ments which  went  out  to  the  states  on  the  25th  of  Sep- 
tember, 1789,  and  of  which  ten  were  ratified.  The 
eleventh  was  adopted  by  Congress  on  the  5th  of  March, 
1794.  During  its  discussion  nine  of  the  framers  were 
members  of  the  Senate,  and  five  of  the  House.  During 
the  six  years  that  the  twelfth  amendment,  in  one  form 
or  another,  was  under  consideration  in  Congress,  seven 
of  the  framers  were  members  of  the  Senate,  and  four  of 
the  House.  At  the  time  of  its  adoption  by  the  eighth 
Congress,  Dayton,  Butler,  and  Baldwin  were  in  the 
Senate;  none  of  the  framers  then  belonged  to  the  House 
though  thirty-four  were  still  living.  The  six  framers 
of  the  Constitution  who  were  members  of  the  House  and 

1  Annals,  p.  776.  2  1803;  Annals,  p.  214. 

8  For  the  acts  of  ratification,  see  "  Documentary  History  of  the  Con 
stitution,"  vol.  ii,  pp.  411,  451. 


ii8     A    CONSTITUTIONAL   HISTORY    OF 

voted  on  the  first  ten  amendments,  supported  them.  The 
eleventh  was  supported,  in  the  Senate,  by  Ellsworth,  But- 
ler, King,  Langdon,  Martin,  and  Strong,  and  in  the  House 
by  Baldwin,  Gilman,  and  Madison.  Fitzsimons  voted 
against  it.  In  1803,  when  the  twelfth  amendment  was 
proposed,  Baldwin  voted  for  it  in  the  Senate,  and  Butler 
against  it.  Thus  the  record  shows  that  of  the  twenty 
framers  of  the  Constitution  who  were  members  of  Con- 
gress during  the  period  when  the  first  twelve  amendments 
were  under  discussion,  only  two  voted  against  them.  The 
attitude  of  John  Quincy  Adams  toward  the  twelfth 
amendment  as  it  passed  the  Senate,  and  his  vote  against 
it,  because  it  limited  the  House  to  a  choice  of  three  instead 
of  five  candidates,  is  of  interest  in  the  light  of  his  later 
history.  The  second  disputed  election  occurred  in  1824, 
when  the  electoral  votes  for  President  were  divided  among 
Jackson,  Adams,  Crawford,  and  Clay.  By  the  twelfth 
amendment,  the  House  could  not  vote  for  Clay,  the  fourth 
on  the  list.  Had  Adams's  wishes,  as  he  proclaimed  them 
in  1803,  prevailed,  and  the  number  remained  five,  as  in 
the  original  Constitution  and  as  the  House  amendment 
provided,  undoubtedly  Clay  would  have  been  chosen 
President. 

Made  so  soon  after  the  original  instrument,  these 
twelve  amendments  have  long  seemed  contemporary  with 
it.^  Turning  to  their  source,  it  is  clear  that  the  first  ten, 
as  Jeff'erson  declared  they  ought  to  be,  are  a  declaration 
of  rights  and  may  be  said  to  have  emanated  from  a  com- 
mon source,  the  state  constitutions.  Some  of  them,  as 
we  have  seen,  lead  back  to  the  Magna  Charta,  others  to 
the  petition  of  rights,  and  one  was  taken  without  change 
from  the  famous  bill  of  rights  enacted  in  the  time  of 
William  and  Mary.  At  least  eight  are  traceable  to  the 
Declaration  of  Independence  and  three  to  the  older  dec- 
laration of  1765,  but  the  immediate  source  of  most  of 
them  was  the  state  constitutions  and  the  amendments 
demanded  by  the  ratifying  conventions.  The  eleventh 
and  twelfth  amendments  were  administrative  in  character 
and   could   not  have  the  same   source  as   the  first  ten. 

1  Corfield  v.  Coryell,  4  Wash.  C.  C.  371. 


THE   UNITED    STATES  119 

They  were  devices,  opportunist  measures,  originating 
in  the  necessity  of  the  times.  Posterity  has  not  accepted 
Gouverneur  Morris's  opinion  of  the  first  twelve  amend- 
ments, —  that  they  are  "  generally  speaking,  mere  verbi- 
age." ^  They  have  formed  a  part  of  the  supreme  law 
so  long,  they  seem  to  be  as  much  the  work  of  Franklin, 
Washington,  Wilson,  and  Madison,  and  their  colleagues 
in  the  federal  convention,  as  the  original  instrument 
itself. 

The  most  notable  aspect  of  the  effort  to  secure  the 
amendment  of  the  Constitution,  is  the  conscious  attempt 
of  political  parties  to  incorporate  in  the  Constitution  pro- 
visions which  would  make  reasonably  certain  a  peaceful 
administration  of  the  government.  The  brief  period  from 
1789  to  1805  was  of  critical  importance  in  the  evolution 
of  popular  government  in  America,  because  it  was  the  era 
when  debate  of  the  theory  of  republican  institutions  was 
giving  way,  in  a  preliminary  fashion,  to  examination  of 
the  problems  of  administration.  These  problems  in- 
volved the  test  which  every  government,  whatever  the 
form,  must  stand :  the  test  of  practical  operation. 

Yet,  it  must  be  noted,  that  the  twelfth  amendment, 
regulating  the  election  of  President  and  Vice-president, 
is  of  a  different  order  than  any  of  the  preceding  eleven. 
It  was  an  administrative  amendment ;  they  were  additions 
and  corrections  to  bring  the  national  plan  into  conformity 
with  accepted  principles.  It  can  scarcely  be  said  that  the 
twelfth  amendment  involves  a  principle. 

It  is  the  first  fruit  of  the  awakening  to  the  responsi- 
bilities of  administration  of  government,  and  slight  as 
many  considered  its  value  at  the  time  of  its  enactment, 
it  attempted  to  solve  one  problem  in  administration  which 
public  opinion  in  our  own  day  considers  as  yet  not  fully 
solved :  the  best  method  of  electing  the  chief  executive. 
In  the  evolution  of  popular  government  in  America,  this 
amendment  gives  date  to  the  close  of  an  era:  the  era  of 
theories  of  government.  The  American  people,  as  a 
nation,  have  never  abandoned  the  principles  laid  down  by 
the  Fathers,  and  first  embodied  in  the  organic  laws  of 
the  country  in  the  eighteenth  century. 

1  Diary  and  Letters,  vol.  ii,  p.  529. 


120     A    CONSTITUTIONAL   HISTORY    OF 

In  our  day,  when  a  new  President  turns  from  the 
dehvery  of  his  inaugural  to  take  up  the  duties  of  his 
great  office,  he  finds  himself  at  the  head  of  a  thoroughly 
organized  government.  His  predecessor  has  summoned 
the  Senate  in  extra  session  to  act  on  appointments  ;  several 
thousand  clerks,  distributed  among  eight  executive 
departments,  are  attending  to  the  routine  of  the  public 
business  all  over  the  land.  National  courts  are  adjudi- 
cating a  multitude  of  cases  in  the  light  of  a  long  line 
of  precedents.  The  accession  of  a  new  President  causes 
no  jar  or  entanglement  of  public  affairs.  Whatever  his 
politics  he  assumes  his  duties  with  the  aid  of  a  vast  body 
of  experienced  subordinates.  Whatever  his  policy,  he 
does  not  begin  a  government.  Far  different  was  the 
condition  of  affairs  in  1789.  A  President  and  a  Vice- 
president,  senators  and  representatives  had  been  elected, 
but  there  was  no  federal  organization  excepting  the 
imperfect  and  feeble  one  of  the  Confederation.  There  was 
a  department  of  foreign  affairs ;  a  treasury  department ; 
a  war  department ;  a  postoffice  department  and  a  navy 
department,  but  under  no  such  organization  as  their  suc- 
cessors soon  enjoyed.  The  organization  of  the  new 
government  straightway  became  a  political  issue,  —  or, 
more  correctly  speaking,  a  succession  of  issues.  The 
settlement  of  these  issues  resulted  gradually  in  the  organ- 
ization of  a  national  government.  Let  us  now  see  how 
this  was  effected. 


THE    UNITED    STATES  121 


CHAPTER   Vn 

CONTEST 

About  the  time  when  the  first  ten  amendments  were  rati- 
fied in  1789,  an  important  question  in  the  administration 
of  the  government  arose:  that  of  the  constitutionaHty 
of  a  national  bank.  Washington  turned  to  his  chief 
advisers  for  counsel,  but  their  opinions  were  irreconcilable. 
Jefiferson  held  to  the  letter  of  the  Constitution.^  He 
acknowledged  that  it  empowered  Congress  to  borrow 
money  and  to  lay  taxes,  to  equip  fleets  and  armies,  and  to 
promote  the  general  welfare,  but  it  said  not  one  word 
about  a  bank.  To  take  a  single  step  beyond  its  plain 
boundaries  would  be  dangerous.  True,  Congress  could 
lay  taxes  for  the  purpose  of  providing  for  the  general 
welfare,  but  it  could  not  lay  them  for  any  purpose  it 
pleased,  as  it  was  restricted  to  paying  the  debts  and  pro- 
viding for  the  welfare  of  the  Union.  It  was  not  intended 
to  make  Congress  the  sole  judge  of  good  or  evil,  but 
rather  to  lace  up  Congress  straightly  within  its  enumerated 
powers.  The  provision  to  make  all  laws  necessary  and 
proper  for  carrying  into  execution  its  enumerated  powers 
could  be  administered,  he  said,  without  a  bank.  Evi- 
dently such  a  corporation  was  unnecessary,  and  therefore 
was  not  authorized  by  the  Constitution.  Granting  that 
a  bank  would  facilitate  the  collection  of  taxes,  yet  the 
Constitution  permitted  only  necessary  and  not  merely  con- 
venient means  for  executing  the  authority  of  Congress. 
A  loose  construction  here  would  prove  in  the  end  most 
perilous,  for  the  Constitution  would  be  tortured  into  an 
interpretation  which  would  swallow  up  necessity  in  mere 
convenience. 

^  Works,  vol.  Tii,  p.  555. 


122     A   CONSTITUTIONAL   HISTORY    OF 

Far  different  was  Hamilton's  advice.  The  Constitu- 
tion, he  said,  plainly  empowered  Congress  to  do  what  was 
necessary  and  proper.  Its  powers  were  implied  as  well 
as  expressed,^  and  the  objects  entrusted  to  its  manage- 
ment were  in  their  nature  sovereign.  Inseparable  from 
sovereignty  was  the  right  to  erect  corporations.  The 
word  "  necessary  "  was  not  to  be  construed  restrictively, 
nor  as  a  supreme  test  of  a  constitutional  right.  Necessity 
meant  expediency.  To  incorporate  a  bank  would  not 
stretch  the  power  of  the  government,  because  it  would 
be  only  the  exercise  of  authority  within  the  sphere  of 
specified  powers.  Moreover,  the  right  of  Congress  to 
erect  corporations  had  already  been  exercised  in  the 
organization  of  two  territorial  governments,  the  one 
northwest  and  the  other  southwest  of  the  Ohio.^  Thus, 
in  brief,  Hamilton  advised  Washington  that  Congress  had 
power  to  charter  a  national  bank,  because  of  the  sov- 
ereignty of  the  federal  government.  His  opinion  pre- 
vailed, and  the  bill,  which  had  passed  Congress  on  the 
8th  of  February,  1791,  was  signed  by  the  President.^ 

The  principle  involved  in  the  creation  of  a  national 
bank  by  Congress  was  laid  down  in  "  The  Federalist " 
in  the  general  proposition  that  a  government  must  pos- 
sess powers  adequate  to  the  ends  which  it  seeks  to  attain, 
and  that  the  exercise  of  these  powers  is  a  matter  of 
expediency.  In  brief,  the  question  of  establishing  the 
bank  was  administrative  as  well  as  organic.  Public 
finance  might  be  regulated,  the  balance  sheet  of  trade 
might  be  struck,  by  some  other  agent  than  a  bank,  organ- 
ized as  was  the  bank  of  1791.  But  in  weighing  the 
arguments  for  and  those  against  the  bank  bill,  Washing- 
ton could  find  principle  and  expediency  in  the  one  scale 
and  neither   in   the   other. 

The  institution  thus  authorized  had  a  capital  of  ten 
million  dollars,  one-fifth  of  which  was  subscribed  by  the 
United  States.  Its  charter  ran  for  twenty  years  and  its 
bills  were  a  legal  tender  in  all  payments  to  the  United 

1  Works,  vol.  iv,  pp.  105,  T19. 

2  Northwest,  August  7,  1789;  Statutes  at  Large,  vol.  i,  p.  50.  South- 
west, May  26,  1790,  Id.  p.  123. 

2  February  25,  1791,  Id.  p.  191. 


THE   UNITED    STATES  123 

States.  Branch  banks  were  established  in  the  principal 
cities,  and  the  entire  career  of  the  parent  bank  was 
prosperous  and  highly  beneficial  to  the  country.  Twenty- 
eight  years  after  the  passage  of  the  bill  creating  it,  the 
supreme  court  declared  that  Congress  had  power  to  incor- 
porate a  bank ;  ^  and  five  years  later  the  court  held  that  the 
United  States  could  protect  the  bank  against  a  state.^ 
Not  only  did  Hamilton's  opinion  prevail  with  Washing- 
ton, but  ultimately  with  Jefferson  himself,  who,  when 
he  became  President,  signed  the  act  ^  which  had  passed 
Congress  without  a  division  to  allow  the  bank  to  establish 
branches  in  the  territories. 

The  creation  of  the  bank  in  1791  gave  rise  to  the 
formulation  of  two  conflicting  interpretations  of  the  Con- 
stitution, familiarly  known  as  the  strict  and  the  loose; 
the  one  of  adhesion  to  the  exercise  of  expressed  powers, 
the  other  to  that  of  implied  also.  This  difference  of  inter- 
pretation may  be  traced  throughout  the  political  and  con- 
stitutional history  of  the  country  since  the  organization 
of  government  under  the  Constitution.  Primarily  divid- 
ing over  the  powers  of  Congress,  political  parties  have, 
as  time  passed,  differed  in  like  manner  concerning  the 
powers  of  the  President  and  of  the  federal  courts.  The 
seam  of  this  division  in  public  opinion  is  visible  through- 
out American  political  institutions.  No  party  has  contin- 
uously and  persistently  adhered  to  eith,er  a  strict  or  a 
loose  construction  of  the  Constitution.  <^  The  Federalists, 
loose  or  broad  constructionists,  in  1791,  over  the  es- 
tablishment of  a  national  bank,  suddenly  became  strict 
constructionists  in  1803,  over  the  acquisition  of  the  Lou- 
isiana country,  their  political  opponents  changing  their 
attitude  in  like  manner.  But  as  strict  constructionists  or 
loose  constructionists  the  classification  of  parties  has 
long  been  made :  this  line  of  division  perhaps  being  most 
easily  traced.  Generally  speaking,  the  democratic  party 
has  insisted  upon  a  strict  construction  of  the  powers  of 

1  McCullough  V.  Maryland  (1810),  4  Wheaton,  316;  Story's  Com- 
mentaries, 1262.     The  decision  was  by  Chief -Justice  Marshall. 

2  Osborn  et  al.  v.  Bank  of  the  Northwest  (1824),  9  Wheaton,  738; 
Marshall,  324;  see  also  page  241  of  the  present  work.  Decision  by 
Marshall. 

3  March  23,  1804;  Statutes  at  Large,  vol.  ii,  p.  274. 


124     A    CONSTITUTIONAL    HISTORY    OF 

the  federal  government,  —  legislative,  executive,  and 
judicial ;  and  the  adhesion  to  the  principle  has  been  one 
of  its  cardinal  doctrines  since  the  days  of  Jefferson.  The 
Federalists,  the  National  Republicans,  the  Whigs,  and 
the  Republicans,  originating  as  a  party  in  the  days  of 
Hamilton,  have  favored  a  broad  construction  of  federal 
powers,  the  exceptional  cases  only  establishing  the  rule. 
But  the  dictum  of  Hamilton  that  "  necessity  is  expedi- 
ency "  must  ever  be  kept  in  mind  when  the  attempt  is 
made  to  generalize  on  the  history  of  political  parties  in 
America. 

Four  years  after  the  incorporation  of  the  bank,  a 
question  of  vital  importance  was  raised  by  the  Jay  treaty.^ 
Washington  had  sent  Chief-Justice  Jay  as  a  special  envoy 
to  settle  all  questions  of  dispute  between  England  and 
the  United  States.  These  were  chiefly  compensation 
for  negroes  taken  by  British  troops  during  the  revolu- 
tion ;  the  settlement  of  the  boundary  and  the  removal 
of  British  troops  from  the  Northwest ;  the  payment  of 
claims  for  property  illegally  seized  by  British  authority; 
and  the  right  of  the  people  of  the  United  States  to  trade, 
undisturbed  by  England,  with  neutral  powers.  The 
treaty  was  signed  on  the  19th  of  November,  1794.  On 
the  24th  of  June  of  the  following  year  it  was  ratified  by 
the  Senate,  but  meanwhile  hostility  to  the  treaty  had  taken 
form  outside  of  Congress  in  the  protests  of  public  meet- 
ings and  state  legislatures  against  its  approval  by  the 
President.  Washington  approved  it.  The  House  delayed 
voting  the  necessary  appropriation  for  carrying  it  into 
effect.  During  the  debates  in  the  House,  which  were 
almost  continuous  from  January  till  May,  1796,  the  treaty, 
which  had  been  both  ratified  and  amended  by  the  Senate, 
arrived,  after  having  been  approved  by  the  British  gov- 
ernment. The  House  was  not  satisfied,  and  called  for 
all  papers  on  the  treaty  in  the  possession  of  the  President, 
but  he  refused  to  deliver  them  on  the  ground  of  expedi- 
ency and  the  lack  of  authority  of  the  House  to  call  for 
them. 2  The  House  then  took  the  position  that,  as  the 
execution  of  the  treaty  would  depend  upon  appropria- 

1  Treaties  and  Conventions,  pp.  379,  395. 
'  2  Sparks'  Washington,  vol.  xiii,  p.  112. 


THE   UNITED    STATES  125 

tions,  and  as  these  were  within  its  control,  therefore  it 
had  the  right  to  pass  judgment  on  the  expediency  of 
the  treaty/  It  also  resolved  that,  if  acting  within  its 
authority,  it  was  not  bound  to  declare  the  purpose  for 
which  it  sought  information  from  the  President.  The 
great  question  was  not  so  much  the  right  of  the  House 
to  demand  the  papers  as  its  constitutional  right  to  refuse 
the  appropriations  for  executing  the  treaty. 

The  Democratic-Republicans,  led  by  Madison,  insisted 
on  the  constitutional  right  of  the  House  to  refuse  them, 
and  it  was  even  argued  that  the  House  ought  to  participate 
in  the  treaty-making  power.  But  even  the  strictest  of 
strict  constructionists  could  find  no  word  in  the  Constitu- 
tion which  empowered  the  House  to  participate  in  the 
making  of  treaties ;  therefore  the  Republicans  were  com- 
pelled to  base  their  argument  on  the  ground  of  expediency 
and  on  the  exclusive  authority  of  the  House  to  originate 
money  bills  and  to  regulate  trade.  The  Republicans 
asserted  that  the  Constitution  clearly  gave  Congress  power 
to  lay  and  collect  taxes  and  to  regulate  commerce  with 
foreign  nations,  but  as  by  the  Constitution  a  treaty  was  a 
part  of  the  supreme  law  of  the  land,  it  might  follow 
that  the  Senate  and  the  President,  who  possessed  the 
treaty-making  power,  might  make  laws  regulating  com- 
merce and  exclude  the  House  from  all  participation. 
Indeed,  treaties  and  the  laws  of  Congress  might  conflict. 
The  Federalists  argued  from  the  plain  intent  of  the 
Constitution.  Fisher  Ames  spoke  so  eloquently  -  in  favor 
of  voting  the  appropriation  to  execute  the  treaty,  and 
his  speech  was  so  unanswerable,  that  the  Republicans 
adjourned  the  House  lest  a  vote  should  be  taken.  On  the 
following  day,  the  30th  of  April,  the  House  voted,  though 
only  by  a  majority  of  three,  to  carry  the  treaty  into 
effect,  and  thus  solved  the  question  of  appropriations. 

At  the  next  session  of  Congress  ^  the  Senate  was  fed- 
eralist, the  House  democratic-republican.*     Jay's  treaty 

1  Resolutions  of  April  7,  1796. 

2  April  28,  1796;  Johnston's  American  Orations,  vol.  i,  p.  64. 
2  The  fifth  Congress,  May  15,  1797,  March  3,  1799. 

*  Senate,  21  Federalists,  11  Democrats;  House,  51  Federalists,  45 
Democrats. 


126     A    CONSTITUTIONAL   HISTORY    OF 

had  offended  France,  and  her  aggressions  upon  our  com- 
merce promised  war.  The  Republicans  at  home  were 
in  sympathy  with  France,  until  the  publication  ^  of  the 
insults  heaped  on  Pinckney,  Gerry,  and  Marshall,  whom 
Adams  had  sent  as  special  commissioners  to  France, 
turned  the  tide  and  so  affected  the  elections  as  to  give 
the  Federalists  control  of  both  Houses.  Eager  to  prevent 
a  repetition  of  the  late  experience  of  the  country  at  the 
hands  of  noisy  foreigners  residing  within  it,  who  had  used 
libelous  language  and  had  engaged  in  unlawful  enter- 
prises on  behalf  of  the  French  Republicans,  the  Fed- 
eralists determined  to  increase  the  army  and  navy,  to 
prevent  the  treason  of  citizens,  and  to  silence  the  calumny 
of  aliens.  W'ith  a  majority  in  both  branches  they  easily 
carried  out  their  program.  The  naturalization  laws  were 
amended  so  that  a  foreigner  was  required  to  reside  four- 
teen years,  instead  of  five,  in  the  country ;  and  to  give 
five,  instead  of  three,  years'  notice  of  his  intention  to 
become  a  citizen.'^  An  alien  enemy  could  not  be  natu- 
ralized. All  resident  aliens  were  to  be  registered  and 
thus  brought  within  the  surveillance  of  the  government. 
The  President  was  empowered  to  expel  from  the  country 
all  aliens  whom  he  adjudged  dangerous  to  its  peace  and 
safety,  or  whom  he  suspected  engaged  in  treasonable 
practices.^  In  case  of  war  with  a  foreign  country,  the 
President,  at  his  discretion,  might  cause  all  resident  aliens 
or  citizens  of  that  country  to  be  arrested,  and,  if  necessary, 
removed.  The  second  of  these  laws  was  known  as  the 
alien  act,  and  provoked  widespread  hostility.* 

The  Republicans  held  ^  that  it  violated  the  right  of 
personal  liberty,  and  therefore  infringed  upon  the  state 
constitutions ;  that  it  interfered  with  the  right  of  free 
migration,  and  therefore  was  a  direct  injury  to  the  states; 
and  finally,  that  it  was  unconstitutional  because  it  con- 

1  The  X  Y  Z  despatches,  October  and  November,  1797. 

2  Act  of  June  19,  1798;  Statutes  at  Large,  vol.  i,  p.  566;  Annals  of 
Congress,  p.  1570. 

8  Acts  of  June  25,  and  July  6,  1798;  Statutes  at  Large,  vol.  i,  pp.  570, 
577;  Annals  of  Congress,  p.  1566. 

*  For  the  alien  act,  June  21;,  the  alien  enemies  act,  July  6,  and  the 
sedition  act,  Julv  14,  1798,  see  Macdonald,  pp.  141-146. 

^  Madison's  Works,  vol.  iv,  p.  524;  Annals  of  Congress,  pp.  1631, 1773. 


THE   UNITED    STATES  127 

fused  executive  with  judicial  functions.  They  held 
essentially  the  same  opinions  respecting  the  other  two 
acts.  By  what  constitutional  right,  they  asked,  could 
the  President  at  his  discretion  declare  a  resident  alien  to 
be  a  public  enemy?  Or  where  was  the  constitutional 
authority  for  a  law  empowering  the  President  to  arrest 
a  person,  even  an  alien,  who  he  might  claim  was  engaged 
in  treasonable  undertakings?  Clearly  the  law  violated 
the  rights  of  freedom  of  speech  and  the  press  which  were 
given  to  every  inhabitant  of  the  country  by  the  state 
constitutions.  It  also  violated  the  right  of  habeas  corpus, 
a  right  which  every  man  had  under  the  laws  and  consti- 
tutions of  the  commonwealths. 

In  the  face  of  all  these  formidable  objections,  the  Fed- 
eralists persisted  in  passing  the  acts.  Before  they  were 
on  the  statute  books  legislatures  and  political  parties 
began  a  campaign  against  them..  The  master  spirit  in 
this  counter-revolution  was  Jefferson.  He  saw  clearly 
that  the  Federalists  were  intent  upon  building  up  a  strong 
executive  department,^  —  too  strong,  he  believed,  for  the 
other  parts  of  the  Constitution.  He  and  his  followers, 
on  the  other  hand,  were  equally  ardent  to  strengthen  the 
legislative. 

Political  parties  had  not  yet  been  thoroughly  organized, 
but  from  the  time  of  the  enactment  of  the  alien  and  sedi- 
tion laws  are  quite  clearly  defined.  The  two  parties  were 
the  national  party,  or  Federalists,  and  the  state  party,  or 
Democrats.  The  Federalists  would  strengthen  the  gen- 
eral government,  as  the  Democrats  believed,  at  the 
expense  of  the  states.  The  Democrats  would  strengthen 
the  state  governments,  as  the  Federalists  believed,  at 
the  expense  of  the  United  States.  The  decision  of  the 
supreme  court  in  the  case  of  Georgia  had  alarmed  the 
state  party,  and  it  had  taken  up  Iredell's  dissenting 
opinion  as  the  true  and  just  interpretation  of  the  Con- 
stitution. The  eleventh  amendment,  ratified  five  years, 
lacking  three  weeks,  after  Wilson's  decision,  was  a  pro- 
nounced  victory   for   the   democratic   party.     While   the 

1  "The  Constitutional  History  of  the  American  People,  1776-1850," 
vol.  i,  pp.  169,  189. 


128     A    CONSTITUTIONAL   HISTORY    OF 

Federalists  were  carrying  their  odious  alien  and  sedition 
acts  through  Congress,  Jefferson  and  his  friends  sounded 
the  alarm,  and  began  the  campaign  which  was  to  over- 
throw them.  The  state  party  took  the  ground  that  the  acts 
were  clearly  unconstitutional.  Pamphlets  and  newspaper 
articles  pronouncing  them  so,  rnultiplied  in  all  quarters. 
Public  meetings  were  called,  especially  in  the  South  and 
West,  and  resolutions  drawn  up  with  great  care  were  sent 
up  to  the  legislatures.  John  Breckenridge  presented  a  set 
of  resolutions  to  the  Kentucky  legislature  on  the  7th  of 
November,  1797.  Jefferson  was  their  author.^  After  a 
week's  debate,  which  was,  in  truth,  a  series  of  eulogies 
of  the  doctrine  of  the  state  party  and  an  attack  on  the 
Federalists,  the  Kentucky  resolutions  passed. 

A  similar  set,  written  by  Madison  at  Jefferson's 
request,  was  presented  in  the  Virginia  legislature  on  the 
13th  of  December,  and  was  adopted  on  the  24th. ^  These 
were  the  famous  Virginia  and  Kentucky  resolutions.  A 
second  set,  also  written  by  Jefferson,  was  adopted  by  the 
Kentucky  legislature  on  the  22d  of  November,  1799.'' 
Though  differing  in  phraseology,  and  somewhat  in  their 
teachings,  the  three  sets  of  resolutions  constituted  a  body 
of  political  doctrines  of  the  gravest  character.  The  three 
sets  agreed  in  declaring  that  the  Constitution  was  a  com- 
pact to  which  the  states  were  a  party,  and  that  the  powers 
of  the  general  government  were  limited  by  the  plain 
sense  of  the  Constitution.  In  case  of  a  deliberate,  palpable, 
and  dangerous  exercise  of  powers  that  had  not  been 
granted,  the  states  were  in  duty  bound  to  interpose  and 
arrest  the  progress  of  the  evil.  The  federal  government 
was  accused  of  seeking  to  enlarge  its  powers  by  a  forced 
construction  of  the  Constitution  for  the  purpose  of  consol- 
idating the  states  into  one  sovereignty,  the  effect  of  which 
would  be  the  transformation  of  the  republic  into  a  mon- 
archy. The  Virginia  and  the  two  Kentucky  resolutions, 
however  they  vary  from  a  common  expression,  practically 

1  For  the  resolutions,  see  Preston's  Documents,  p.  287  ;  Elliot,  vol.  iv, 
p.  540. 

^  Preston,  p.  284;  Elliot,  vol.  iv,  p.  528. 
8  Preston,  p.  295 ;  Elliot,  vol.  iv,  p.  544. 


THE   UNITED    STATES  129 

declared  the  alien  and  sedition  acts  unconstitutional,  be- 
cause they  violated  the  bills  of  rights,  the  very  foundation 
of  the  state  constitutions.  And  because  the  states  which 
had  formed  the  Constitution  were  sovereign  and  inde- 
pendent, they  had  the  unquestionable  right  to  judge  of 
its  infraction.  The  rightful  remedy,  therefore,  was  "  a 
nullification  by  those  sovereignties  of  all  unauthorized  acts 
done  under  color  of  that  instrument."  In  brief,  the  reso- 
lutions claimed  that  the  commonwealths  were  sovereign 
powers  and  denied  sovereignty  to  the  general  government. 
Carried  to  their  ultimate  conclusion,  the  second  Kentucky 
resolutions  plainly  asserted  the  right  of  a  state  to  nullify 
a  federal  law.  From  this  doctrine  the  right  of  secession 
was  an  inevitable  deduction. 

The  fateful  idea  of  state  sovereignty  had  now  been 
clearly  set  forth  and  its  practicable  form  suggested. 
Copies  of  the  resolutions  were  sent  to  all  the  legislatures, 
and  nine  states  made  formal  replies.^  Some  of  them 
defended  the  alien  and  sedition  laws;  Delaware  declared 
that  the  Virginia  resolutions  were  an  unjustifiable  inter- 
ference with  the  powers  of  the  general  government ;  Ver- 
mont and  Massachusetts  asserted  that  no  state  legislature 
had  the  right  to  usurp  the  powers  of  a  federal  court. 
Not  one  state,  save  Virginia  and  Kentucky,  had  approved 
the  resolutions.  Jefferson  and  his  friends  did  not  expect 
such  a  repulse.  The  replies  of  the  states  were  referred  by 
the  Virginia  house  of  burgesses  to  a  committee  of  which 
Madison  was  chairman,  and  he,  taking  up  the  original  res- 
olutions article  by  article,  labored  in  an  elaborate  report  ^ 
to  prove  that  they  were  in  harmony  with  the  express  pro- 
visions of  the  federal  Constitution.  Madison  did  not  hold 
to  the  doctrine  of  nullification,  but  he  pronounced  the  fed- 
eral government  a  compact  between  the  states,  and  declared 
that  its  powers  were  not  original,  but  derivative.  He  cited 
the  history  of  the  country  to  prove  the  inaccuracy  of  the 
idea  of  national  sovereignty.  The  states  were  the  final  arbi- 
trators. They  were  the  creators  of  the  general  govern- 
ment ;  it  was  their  agent.    Just  at  what  time  a  state  might 

1  Elliot,  vol.  iv,  p.  S32. 
3  Id.  vol.  iv,  p.  546. 

9 


I30     A    CONSTITUTIONAL   HISTORY   OF 

pronounce  that  a  federal  act  was  a  palpable  violation  of  its 
rights,  he  did  not  say,  but  he  left  the  door  open.  Nulli- 
fication was  to  be  worked  out  in  the  practical  administra- 
tion of  the  government. 

The  Kentucky  and  Virginia  resolutions  embodied  the 
famous  "  doctrine  of  '98,"  and  undoubtedly  expressed 
the  belief  of  the  majority  of  the  voters  of  the  time.  That 
this  is  true  is  shown  in  the  elections  of  1800,  which  put 
the  democratic  party  in  possession  of  the  legislative  and 
executive  branches  of  the  government.  The  campaign 
against  the  alien  and  sedition  laws,  which  Jefferson  and 
his  friends  began  in  1798,  had  widened  into  a  state 
movement  and  had  taken  permanent  form  in  the  organi- 
zation of  a  great  political  party,  which,  by  its  representa- 
tives in  the  House,  was  able,  on  the  17th  of  February, 
1 801,  on  the  thirty-sixth  ballot,  to  elect  Jefferson  Presi- 
dent of  the  United  States.  The  repeal  of  the  alien  and 
sedition  acts  followed  soon  after.  The  triumph  of  the 
Democratic-Republicans  in  1800  seemed  to  establish  the 
doctrines  of  the  Kentucky  resolutions.  If  they  truly 
expressed  the  ruling  principles  of  the  American  govern- 
ment, then  the  state  legislatures  were  the  final  arbitrators  ^ 
in  all  cases  in  which  the  constitutionality  of  an  act  of 
Congress  was  in  doubt. 

An  opportunity  to  apply  the  doctrine  of  '98  arose  soon 
after  the  inauguration  of  Jefferson,  out  of  the  question 
of  the  constitutionality  of  the  purchase  of  Louisiana. 
While  the  Constitution  was  before  the  states  for  ratifica- 
tion, the  Mississippi  question  was  one  of  the  important 
matters  demanding  solution.  The  members  of  the  Vir- 
ginia convention  from  the  western,  or  Kentucky,  district 
had  resolutely  stood  out  against  ratification  till  convinced 
by  Madison  and  Marshall,  and  by  other  supporters  of  the 
Constitution,  that  the  new  government  did  not  intend  to 
surrender  the  Mississippi  to  Spain.  In  North  and  South 
Carolina,  whose  territory  extended  westward  to  the  great 
river,  opposition  was  in  part  allayed  by  the  same  under- 

1  Per  contra  Story's  Commentaries,  p.  1637  ;  Marshall,  p.  227.  United 
States  V.  Peters  (1809),  5  Cranch,  115;  Gibbons  v.  Ogden  (1824), 
9  Whcaton,  i. 


THE   UNITED   STATES  131 

standing.  On  the  ist  of  October,  1800,  Spain  ceded 
Louisiana  to  France,  but  the  cession  in  no  wise  diminished 
the  danger  to  American  interests.  A  foreign  power  still 
controlled  the  mouth  of  the  Mississippi,  and  one  more 
to  be  feared  than  Spain.  Jefiferson  promptly  declared 
that  the  possessor  of  New  Orleans  must  be  the  natural 
and  habitual  enemy  of  the  United  States,^  and  he  in- 
structed Livingston,  our  ambassador  at  Paris,  to  begin 
negotiations  with  France  for  the  acquisition  of  the  two 
Floridas  and  of  the  island  of  Orleans.  As  Napoleon  was 
at  this  time  dreaming  of  a  vast  colonial  policy,  the  matter 
received  little  attention.  The  disasters  which  soon  over- 
took him  compelled  him  to  change  his  plans,  and  he  let 
it  be  known  to  the  American  ambassador  that  he  would 
sell  Louisiana  to  the  United  States.  Such  an  oppor- 
tunity could  never  occur  again.  On  the  30th  of  April, 
1803,  a  treaty  was  signed  at  Paris  by  which  the  United 
states  acquired  all  of  Louisiana  for  fifteen  million  dollars.^ 
By  the  terms  of  the  treaty,  the  inhabitants  of  Louisiana 
were  to  be  incorporated  in  the  Union  and  as  soon  as 
possible  were  to  be  admitted  to  the  enjoyment  of  all  the 
rights,  advantages  and  immunities  of  citizens  of  the 
United  States  ;  and  they  were  to  be  protected  in  the  enjoy- 
ment of  their  liberty,  property,  and  religion.^  A  reci- 
procity clause  opened  the  port  of  New  Orleans  for  twelve 
years  to  the  commerce  and  manufactures  of  France, 
Spain,  and  their  colonies,  but  no  other  nation  was  entitled 
to  like  privileges. 

Though  the  purchase  was  of  immeasurable  importance  I 
to  the  Union,  its  constitutionality  was  quickly  attacked 
by  the  Federalists,  yet  not  by  the  most  famed  member 
of  the  party ;  for  Hamilton,  who  seldom  agreed  with 
Jefferson,  now  agreed  with  him,  that  the  unity  of  the 
United  States  and  its  best  interests  required  the  an- 
nexation of  all  territory  west  of  the  Mississippi.*     The 

1  April  18,  1802;  Works,  vol.  iv,  p.  431. 

2  The  aggregate  cost  for  purchase  money,  interest,  and  claims  assumed 
by  the  United  States,  paid  to  June  30,  1880,  was  ;?27, 267,621. 98;  Donald- 
son's "  Public  Domain,"  p.  105. 

8  Article  III ;  Treaties  and  Conventions,  p.  332. 
*  Works,  vol.  vi,  p.  541. 


132     A   CONSTITUTIONAL   HISTORY    OF 

whole  transaction  was  without  precedent  in  our  annals. 
Livingston  and  Monroe,  who  had  conducted  the  negotia- 
tions, acknowledged  that  they  had  exceeded  their  instruc- 
tions, but  at  the  same  time  were  fully  aware  that  they 
were  carrying  out  Jefferson's  wishes.  The  only  thing 
for  the  President  to  do  was  to  have  the  treaty  ratified 
as  soon  as  possible  and  without  debate,  for  he  knew  the 
constitutional  difficulty  in  the  way.  His  plan,  which 
was  executed  to  the  letter,  was  made  easy  by  a  republican 
majority  in  both  Houses.  On  the  19th  of  October  the 
senate  ratified  the  treaty  by  a  vote  of  twenty-four  to 
seven,  —  ten  votes  to  spare ;  and  the  House,  with  equal 
promptness  and  zeal,  voted  the  necessary  appropriations 
and  organized  a  territorial  government,  but,  strange  to 
say,  on  a  monarchical  plan ;  for  they  empowered  the  Presi- 
ident,  in  the  first  act  of  the  session,  to  take  possession  of 
the  territory  and  to  exercise  military,  civil  and  judicial 
powers  over  it  at  his  discretion,  till  a  territorial  govern- 
ment in  due  form  should  be  established.^ 

This  unique  law  did  not  agree  with  Jefferson's  prin- 
ciples of  strict  construction,  but  he  approved  it  and  at 
once  carried  it  into  effect.  It  gave  the  Federalists  an 
opportunity  to  retaliate  on  Jefferson  and  accuse  him  of 
monarchical  tendencies.  John  Randolph,  the  Republican 
leader  in  the  House,  even  went  so  far  as  to  attempt  to 
prove  that  the  acquisition  strictly  complied  with  the  Con- 
stitution ;  but  he  doubtless  knew  better.  Not  one  word  in 
that  instrument  expressly  authorized  the  purchase.  Not 
one  word  of  which  we  have  record,  spoken  in  the  federal 
convention,  intimates  that  the  framers  anticipated  the 
annexation  of  the  Louisiana  country.  The  transaction 
was  at  variance  with  the  ideas  of  the  Fathers.  Even  the 
states  had  not  been  consulted,  and  by  the  doctrine  of 
'98,  of  which  Jefferson  was  the  chief  author,  they  were 
the  final  arbitrators  of  the  constitutionality  of  the  treaty. 

In  acquiring  the  vast  domain,  Jefferson  showed  states- 
manship of  the  highest  order.  He  simply  ignored  the 
Constitution  and  secured  for  the  American  people  a  region 
of  country  most  necessary  to  their  general  welfare,  and  he 

1  October  31,  1803  ;  Statutes  at  Large,  vol.  ii,  p.  245. 


THE   UNITED    STATES  133 

acted  the  part  of  an  honest  man  when  he  frankly  admitted 
that  the  Constitution  made  no  provision  for  acquiring 
foreign  territory  or  incorporating  foreign  nations  into 
the  Union. 

He  confessed  that  he  had  done  an  act  beyond  the  Con- 
stitution, but  he  beUeved  that  it  was  for  the  good  of  the 
country,  and  therefore  Congress  should  ratify  the  treaty, 
pay  for  the  acquisition,  and  then  throw  themselves  on  the 
country  for  doing  an  unauthorized  act.  But  he  thought 
that  the  position  would  be  improved  if  the  purchase  was 
formally  ratified  in  a  constitutional  amendment,  and  even 
went  so  far  as  to  draw  one  up  and  wished  to  submit  it  to 
Congress.  His  political  friends,  wiser  in  this  respect  than 
he,  but  perhaps  less  scrupulous,  failed  to  respond  to  his 
wishes  and  the  matter  dropped.  Even  while  ignoring 
the  Constitution,  if  it  can  be  said  that  he  did  ignore  it, 
but  certainly  in  turning  his  back  on  his  own  party,  Jeffer- 
son applied  its  teachings  in  a  large  way.  He  was  right 
in  believing  that  the  majority  of  the  American  people 
would  support  him  in  his  policy.  He  was  considering 
the  good  of  the  whole  people.  His  great  act,  therefore, 
remains  unique  in  our  history  as  a  singular  example  of 
a  party  chief  repudiating  the  doctrines  of  his  political 
school  long  enough  to  carry  through  a  transaction,  every 
element  of  which  contradicted  those  teachings.  The  ac- 
quisition of  Louisiana  was  a  fine,  but  not  a  final  example 
of  the  elevation  of  expediency  to  principle  without  viola- 
tion to  other  principles  of  republican  government  on 
which  the  American  system  rests. 

The  Federalists  in  like  manner  repudiated  their  party 
principles  and  attacked  the  transaction  as  unconstitu- 
tional. Necessarily  their  attack  was  weak,  but  what  they 
lacked  in  argument  they  made  up  in  threats.  They  de- 
clared that  a  constitutional  amendment  was  a  necessary 
preliminary  to  such  a  treaty,  but  the  question  was  fully 
answered  by  Nicholson,  of  Maryland,  that  a  sovereign 
nation  always  possesses  the  right  to  acquire  new  territory, 
and  he  cited  the  provision  in  the  Constitution  empowering 
Congress  to  dispose  of  and  to  make  all  needful  rules  and 
regulations  respecting  the  territorial  or  other  property  of 
the  United  States ;  but  this  was  a  federalist  argument  and 


134     A    CONSTITUTIONAL    HISTORY    OF 

was  interpreting  the  Constitution  on  principles  which  the 
Republicans  had  all  along  held  to  be  highly  dangerous. 

There  was,  however,  another  objection.  Pickering,  of 
Massachusetts,  declared  in  the  Senate  that  a  transaction 
of  this  kind,  which  so  seriously  affected  the  Union,  could 
not  be  made  without  the  assent  of  each  state.  "  In  like 
manner  as  in  a  commercial  house,  the  consent  of  each 
member  would  be  necessary  to  admit  a  new  partner  into 
the  company,"  ^  but  this  partnership  theory  of  the  govern- 
ment was  not  a  true  federalist  doctrine.  Though  the 
Republicans  had  made  great  use  of  it  in  exploiting  the 
Kentucky  and  Virginia  resolutions,  they  saw  no  relevancy 
in  it  now.  Some  of  them  blandly  asked  the  Federalists 
how  this  partnership  theory  could  be  harmonized  with 
their  theory  of  a  national  instead  of  a  federal  govern- 
ment? The  debate  was  altogether  curious.  Federalists 
had  turned  Republicans,  and  Republicans  had  turned 
Federalists. 

Hamilton  was  not  the  only  broad  constructionist  who 
supported  Jefferson.  John  Quincy  Adams  stood  with 
him.  Though  differing  as  to  the  best  means  of  removing 
all  difficulty,  Hamilton  and  Adams  agreed  that  the  pur- 
chase ought  to  be  made.  Adams  favored  ratification  by 
the  state  legislatures  as  equivalent  to  a  constitutional 
amendment,  iDut  this  view  squinted  between  the  doctrine 
of  '98  and  the  national  doctrine  of  the  Federalists,  though 
it  differed  so  widely  from  theirs  that  they  straightway  read 
Adams  out  of  the  party.  Many  of  the  Federalists,  though 
not  their  greatest  leaders,  suddenly  professed  belief 
in  the  doctrine  of  '98,  and  advised  its  radical  applica- 
tion. "  Rather  than  approval  of  the  treaty,  let  the  federal- 
ist states  secede  from  the  Union,"  ^  but  this  program  was 
too  much  for  them,  as  at  this  time,  only  three  states  had 
federalist  legislatures.  Hamilton  opposed  this  scheme, 
for  he  saw  both  its  dangers  and  its  absurdity.  Some  of 
the  federalist  leaders  found  themselves  in  correspondence 
with  Aaron  Burr,  with  what  ultimate  purpose  is  not 
exactly  known,  but  apparently  for  secession.  These  dis- 
affected politicians  persisted  in  saying  that  the  acquisition 

1  Debates  of  Congress,  vol.  iii,  p.  13. 

2  Jefferson's  Works,  vol.  iv,  p.  542. 


THE   UNITED    STATES  135 

of  Louisiana  must  injure  the  northern  and  eastern  states 
beyond  remedy.  Not  one  FederaUst  anticipated  the  ex- 
tension of  slave  territory  which  the  purchase  made  pos- 
sible, and  no  man  at  this  time  foresaw  the  effect  which  the 
acquisition  was  to  have  upon  the  history  of  the  slave 
power. 

The  Republicans  in  their  defence  of  the  treaty  made  no 
hint  at  slavery  extension.  That  evil  was  to  come  at  a  later 
day.  The  bitter  controversy  over  the  treaty  in  and  out 
of  Congress  showed  how  political  parties  are  dominate_d_ 
by  their  adhesion  to  expediency.  The  Louisiana  purchase 
for  a  time  exchanged  the  positions  of  Federalists  and 
Republicans,  nor  did  the  irony  of  history  cease  with  the 
close  of  the  agitation.  Twenty-five  years  after  the  pur- 
chase, the  greatest  of  our  judges,  and  one  of  the  most 
uncompromising  of  Federalists,  delivered  an  opinion,  as 
chief-justice  of  the  United  States,  which  fully  sustained 
the  constitutionality  of  the  purchase.  The  Constitution, 
said  Marshall,  confers  absolutely  on  the  government  of 
the  Union  the  powers  of  making  war  and  of  making 
treaties ;  consequently,  that  government  possesses  the 
power  of  acquiring  territory  either  by  conquest  or  by 
treaty.^  Marshall  was  chief- justice  at  the  time  of  the 
acquisition  of  Louisiana.  A  few  of  the  more  radical 
members  of  the  political  party  to  which  he  belonged,  and 
they  chiefly  resided  in  New  England,  advocated  secession 
from  the  Union  rather  than  acquiescence  in  the  treaty. 
It  is  an  interesting  question  whether,  had  the  case  which 
reached  him  in  1828  come  before  him  in  1803,  he  would 
have  given  a  similar  decision.  It  may  be  confidently 
asserted,  however,  that  he  would  not  have  sustained  an 
act  of  secession.^  In  its  constitutionality,  the  purchase 
of  Louisiana  became  the  precedent  for  all  our  later 
acquisitions. 

The  question  of  secession  came  up  again  four  years 
after  the  purchase  of  Louisiana  in  connection  with  the 
embargo  of  1807,^  an  act  which  bore  heavily  on  the  com- 

^  The  American  Insurance  Company  <?/' «/.  v.  Canter,  i  Peters,  511. 
2  Compare  Cohens  v.  Virginia,  6  Wheaton,  377 ;  Ogden  v.  Saunders, 
12  Wheaton,  332. 

8  Act  of  December  22,  1807 ;  Statutes  at  Large,  vol.  ii,  p.  451. 


136     A    CONSTITUTIONAL   HISTORY    OF 

merce  and  manufactures  of  the  country,  but  most  heavily 
on  those  of  New  England,  where  it  provoked  serious  op- 
position. Its  defenders  claimed  that  it  was  made  in  the 
exercise  of  the  war  power  and  also  under  the  authority 
of  Congress  to  regulate  commerce,  but  a  great  majority 
of  the  people  of  New  England  believed  that  the  law  was 
unconstitutional.^  They  said  that  instead  of  regulating 
commerce,  it  obstructed  it  indefinitely,  for  the  law  was 
perpetual.  Therefore,  they  considered  it  a  violation  of 
the  Constitution,  Here  was  a  fine  opportunity  for  a  New 
England  state,  and  especially  for  Massachusetts,  to  de- 
clare, according  to  the  doctrine  of  '98,  that  the  embargo 
law  was  "  a  deliberate,  palpable,  and  dangerous  exercise 
of  power  not  granted  by  the  Constitution."  It  was  delib- 
erate because  long  continued ;  palpable,  because  no  words 
in  the  Constitution,  but  only  a  violent  construction  of  it, 
suffered  the  law ;  and  it  was  dangerous,  since  it  threat- 
ened utterly  to  ruin  the  most  important  interests  of  the 
state.  But  the  state  went  no  further  than  to  petition 
Congress  for  its  repeal,  and  with  some  eflFect.^  Though 
a  majority  of  the  New  England  people  believed  that  the 
law  was  unconstitutional,  they  were  willing  that  the  de- 
cision be  made  by  the  proper  tribunal.  It  was  made  and  it 
was  made  against  them.  The  constitutionality  of  the  law 
was  sustained.''  New  England  submitted  and  refused  to 
apply  the  doctrine  of  '98.* 

Hostility  in  New  England  toward  the  embargo  merged 
finally  into  a  settled  hostility  toward  the  whole  republican 
theory  of  administration  and  found  vent  seven  years  later 
in  the  Hartford  convention  and  in  opposition  to  the  second 
war  with  England.  Though  the  convention  was  merely 
a  vigorous  expostulation  by  a  few  ardent  Federalists 
against  a  political  policy,  it  was  construed  by  the  Republi- 
cans as  preliminary  to  an  overt  act  of  secession,  and  was 
long  pilloried  before  the  world  as  proof  of  the  treasonable 

1  "  Life  of  William  Plummer,"  p.  369;  Gould's  Portland,  p.  423. 

2  Benton's  Debates,  vol.  iii,  p.  629.     Webster's  Speech. 

'  Blake's  "  Examination  of  the  Constitutionality  of  the  Embargo 
Laws,"  U.  S.  District  Court,  vSalem,  Massachusetts. 

*  Webster's  Second  Speech  on  Foot's  Resolution,  Works,  vol.  iiL 
P-  327- 


THE   UNITED   STATES  137 

intentions  of  New  England  in  1814.^  The  East  was  far 
from  enthusiastic  in  support  of  the  war.  The  Federalists, 
the  strongest  party  in  that  quarter,  asserted  that  a  conflict 
might  have  been  avoided.  They  were  sluggish  as  a  party 
in  responding  to  the  call  of  the  government  for  support, 
and  some  of  them  denied  the  constitutional  power  of  the 
President  to  call  out  the  militia. 

This  spirit  raised  a  critical  constitutional  question, 
which,  though  it  did  not  reach  the  supreme  court  till 
some  years  later,  finally  decided  the  matter  at  issue. ^ 
A  militiaman  in  the  state  of  New  York  refused  to  enter 
the  service  of  the  United  States,  when  summoned  by  the 
President.  The  court  before  which  the  case  came,  by 
appeal,  held  that  the  authority  to  decide  whether  there 
was  imminent  danger  of  invasion  rested  exclusively  with 
the  President,  and  that  his  decision  was  conclusive  for  all 
persons.  The  power  was  to  be  exercised  upon  sudden 
emergencies  and  under  circumstances  which  might  be 
vital  to  the  Union.  A  prompt  and  unhesitating  obedience 
to  order  was  indispensable.  The  law  on  the  subject,' 
therefore,  was  constitutional,  and  every  member  of  a  militia 
company  was  amenable  to  it.  The  decision  was  far- 
reaching  for  it  linked  the  military  authority  of  the  United 
States  to  the  militia  service  in  every  state,  and  established 
beyond  controversy  the  power  of  the  President  as  com- 
mander-in-chief of  the  militia,  when  it  is  called  into  the 
national  service.  The  decision  went  far  to  establish  that 
authority  which  the  national  government  possesses  over 
individuals  enunciated  as  a  principle  of  government  in 
"  The  Federalist " :  *  the  power  to  address  itself  to  the 
hopes  and  fears  of  individuals. 

The  war  of  181 2  left  a  long  train  of  political  problems 
incident  to  the  economic  re-organization  of  the  country. 
Of  these  the  first,  of  great  importance,  was  the  question 
of  the  constitutionality  of  internal  improvements.  On 
this  subject  the  constitution  is  not  explicit.     It  empowers 

*  See  Dwight's  Hartford  Convention  and  its  Journal. 

'  Martin  v.  Mott,  12  Wheaton,  19  (1827).  The  decision  was  by  Mr 
Justice  Story. 

3  Act  of  February  28,  1795 ;  Statutes  at  Large,  vol.  i,  p.  424. 

*  "  The  Federalist,"  No.  XVI, 


138     A    CONSTITUTIONAL    HISTORY    OF 

Congress  to  establish  post-roads,  to  regulate  commerce 
between  the  states,  to  control  the  territories,  to  levy  taxes, 
to  make  appropriations,  and,  in  brief,  to  make  all  laws 
which  it  may  consider  necessary  and  proper  to  promote 
the  general  welfare,  but,  in  constitutional  discussions, 
down  to  Madison's  second  administration  (1813-1817), 
no  party  had  arrived  at  the  conclusion  that  the  Constitu- 
tion permits  internal  improvements  at  national  expense. 
Jefferson,  early  in  his  second  administration,  informed 
Congress  that  there  was  likely  soon  to  be  a  surplus  in  the 
treasury,  and  the  question  to  what  it  should  be  applied 
must  be  answered.  He  pointed  out  two  suitable  objects, 
—  internal  improvements  and  public  education ;  but  he 
could  find  no  authority  in  the  Constitution  to  expend 
money  for  either  of  these  purposes ;  therefore,  he  advised 
an  amendment  which  would  permit  such  applications  of 
the  public  moneys,^  and  he  repeated  his  recommendation 
in  his  last  annual  message.^  His  successors,  Madison  and 
Monroe,  renewed  the  suggestion.^  Its  repetition  must  be 
accepted  as  evidence  of  a  settled  policy  on  the  part  of  the 
Republicans,  that  internal  improvements  at  national  ex- 
pense were  not  authorized  by  the  Constitution. 

The  most  elaborate  argument  on  the  subject  was  made 
by  Monroe  in  his  veto  of  the  Cumberland  road  bill,*  the 
longest  message  sent  to  Congress  by  any  of  our  Presidents. 
He  took  up  each  clause  in  the  Constitution,  which  by  any 
construction  could  be  applied  in  authorization  of  internal 
improvements,  and  after  a  most  searching  examination 
arrived  at  the  conclusion  that  Congress  had  not  been 
granted  power  to  execute  such  improvements.  These 
must  be  undertaken,  if  at  all,  by  the  states.  Whatever  the 
advantages  which  might  accrue  to  the  general  govern- 
ment from  such  an  undertaking,  they  would  be  no  com- 
pensation for  the  violence  done  to  the  supreme  law.  He 
admitted  that  such  improvements  were  of  vital   impor- 

1  Message  of  the  President,  December  2,  1806;  Richardson,  vol.  i, 
p.  409. 

2  November  8,  1808,  Id.  p.  456. 

8  Madison,  December  5,  1815,  Id.  p.  567;  Monroe,  December  2,  1817, 
Id.  vol.  ii,  p.  18;  December  3,  1822,  Id.  p.  191;  December  2,  1823,  Id 
p.  207 ;  May  4,  1822,  Id.  p.  142. 

*  May  4,  1822,  Id.  vol.  ii,  p.  144. 


THE   UNITED    STATES  139 

tance ;  but  the  only  way  in  which  they  could  be  made  was 
through  an  amendment  to  the  Constitution.  The  states 
individually  could  not  transfer  the  power  to  the  United 
States,  nor  could  the  United  States  receive  it  from  them. 
Any  compact  between  the  general  government  and  a  state, 
which  was  not  common  to  all,  would  bear  most  pernicious 
consequences.  Thus  the  answer  of  the  Republicans  to  the 
demand  for  internal  improvements  at  national  expense  in 
1818  was  non  possiuiius.  In  this  opinion  Monroe  closely 
followed  Madison,  who  in  an  earlier  veto  message  had 
taken  nearly  the  same  ground.^  These  opinions,  hov/- 
ever,  were  not  shared  by  the  whole  country,  as  the  reso- 
lutions of  the  House  of  Representatives  passed  a  year  after 
Madison's  veto  indicated. ^  These  asserted  the  right  of 
Congress  to  make  appropriations  for  such  improvements, 
but  as  yet  they  had  not  the  support  of  a  majority  of  the 
people,  and  therefore  were  only  the  opinion  of  a  minority 
party.  The  whole  question  of  internal  improvements  in- 
volved the  vital  question  of  sovereignty.  If  the  principle 
was  admitted  that  the  federal  government  was  sovereign, 
then  supreme  economic  interests  might  ignore  state 
boundaries,  and  the  economic  welfare  of  the  people  would 
take  precedence  over  the  dicta  of  state  sovereignty. 

The  treaty  of  1803,  by  which  Louisiana  was  acquired, 
bound  the  United  States  to  protect  its  inhabitants  in  the 
enjoyment  of  their  religion,  liberty,  and  property.  Slavery 
already  flourished  among  them,  and  property  included 
slaves.  At  the  time  of  the  admission  of  Louisiana^  there 
were  about  one  hundred  thousand  people  in  the  entire 
acquisition,  of  whom  twenty  thousand  resided  within  the 
present  bounds  of  Missouri.  In  ten  years  (1810-1820) 
the  population  of  Missouri  increased  to  nearly  seventy 
thousand,  of  whom  ten  thousand  were  slaves.  In  1819 
there  were  about  sixteen  hundred  slaves  in  Arkansas. 
The  treaty  also  provided  for  the  admission  of  new  states 
that  might  be  formed  out  of  the  purchase,  on  an  equal 
footing  "with  the  original  thirteen  ;  thus,  the  United  States 
was  under  obligation  to  protect  slavery  and  to  admit  new 
states  from  the  region  without  discrimination. 

1  March  3,  1817  ;  Richardson,  vol.  i,  p.  585. 

2  March  4,  1818.  »  April  8,  1812. 


I40     A    CONSTITUTIONAL    HISTORY    OF 

In  March,  1818,  John  Scott,  the  delegate  in  Congress, 
from  Missouri  territory,  submitted  a  petition  for  its  ad- 
mission into  the  Union.  At  the  next  session  of  Congress, 
Henry  Clay,  the  Speaker,  on  the  i8th  of  December,  sub- 
mitted the  Missouri  petition  to  the  House,  but  it  was  not 
seriously  considered  until  the  13th  of  February,  when  the 
House  discussed  the  report  of  the  committee  of  the  whole, 
which  was  in  the  usual  form  for  the  admission  of  a  state, 
that  its  constitution  be  republican  in  form  and  not  in- 
consistent with  the  Constitution  of  the  United  States. 
Tallmadge,  of  New  York,  immediately  proposed  two  re- 
strictions :  first,  against  further  introduction  of  slavery  in 
the  new  country,  except  as  a  punishment  for  crime ;  and 
secondly,  for  the  gradual  emancipation  of  all  slave-born 
children  within  the  state  at  the  age  of  twenty-five  years. ^ 
The  first  restriction  was  taken  from  the  ordinance  of  1787, 
and  the  second  was  suggested  by  the  practice  of  several 
northern  states.  Tallmadge  and  his  supporters  declared 
that  the  restrictions  were  just  and  expedient,  but  their 
opponents  argued  with  equal  vigor  that  Congress  had  no 
authority  to  impose  conditions  on  a  state  government 
other  than  that  it  be  republican  in  form.  It  was  asserted 
that  the  authority  of  Congress  was  clear,  as  the  Constitu- 
tion authorizes  it  to  dispose  of  and  to  make  all  needful 
rules  and  regulations  respecting  territorial  and  other 
property  of  the  United  States.  In  proof  the  restrictionists 
cited  the  enabling  acts  of  Ohio,  Indiana,  and  Illinois, 
which  complied  with  the  ordinance  of  1787. 

As  Missouri  lay  directly  west  of  these  states,  the  re- 
strictionists believed  that  it  should  be  subject  to  the  same 
anti-slavery  law.  But  what  of  the  treaty  of  1803,  which 
put  Congress  under  obligation  to  protect  the  property  of 
the  citizens  of  the  Louisiana  country?  True,  replied  the 
restrictionists,  but  nothing  was  said  in  the  treaty  about 
the  organization  of  new  states ;  and  even  if  such  a  pro- 
vision had  been  inserted,  who  would  claim  that  a  treaty 
made  by  the  Senate  and  the  President  could  bind  Congress 
in  the  admission  of  new  states?  That  it  could  not  bind 
Congress  was  evident  from  the  organization  of  the  terri- 

1  February  15,  i8ig;  Benton's  Debates  of  Congress,  vol.  vii,  p.  334. 


THE   UNITED    STATES  141 

tories  of  Louisiana  and  Orleans,  and  the  admission  of 
Louisiana  into  the  Union.  The  enabUng  acts  imposed 
conditions  and  thus  settled  the  whole  matter.  If  Congress 
had  the  power  to  purchase  the  Louisiana  country,  it  had 
the  power  to  regulate  its  territorial  government  and  to 
provide  for  the  gradual  abolition  of  slavery  within  its 
limits. 

But  to  exclude  slavery  would  depreciate  the  value  of 
its  pubUc  lands.  Not  so,  rephed  the  restrictionists ;  the 
price  would  rise.  Lands  always  sold  higher  in  free  than 
in  slave  states.  The  exceptions  in  the  Constitution  in 
favor  of  slavery  and  the  slave  states,  the  restrictionists 
argued,  applied  to  the  original  states  but  not  to  new 
states.  The  Constitution  guarantees  to  each  state  a  repub- 
lican form  of  government  which  would  be  violated  if 
slavery  was  extended  into  Missouri.  Clay  replied  that 
the  proposed  restriction  would  violate  that  clause  in  the 
Constitution  which  declares  citizens  of  each  state  entitled 
to  all  the  privileges  and  immunities  of  citizens  of  the 
several  states,  but  he  was  promptly  asked,  whether  slavery 
could  be  called  a  privilege.  He  feared  that  there  would 
be  no  end  of  conditions  if  restrictions  were  allowed,  but 
he  was  assured  that  the  only  one  demanded  was  that  of 
a  republican  form  of  government.  Until  1808,  said  the 
restrictionists,  the  immigration  or  importation  of  slaves 
could  not  be  prohibited  by  Congress,  but  that  time  had 
now  passed,  and  immigration,  if  it  meant  anything  at  all, 
meant  the  transportation  of  slaves  from  one  state  to  an- 
other. The  time  limit  having  long  since  expired,  Congress 
was  free  to  prevent  a  further  extension  of  slavery.  But 
to  all  these  arguments  of  the  restrictionists  there  was  one 
constant  rejoinder,  that  if  the  citizens  of  any  one  of  the 
old  states  had  the  right  to  determine  whether  they  would 
tolerate  slavery,  why  should  not  the  citizens  of  Missouri 
have  the  same  privilege?  The  states  were  equal,  sov- 
ereign, and  independent,  and  if  Congress  discriminated 
among  them  the  Union  would  be  destroyed.  Finally,  in 
spite  of  the  arguments  against  them,  both  the  Tallmadge 
restrictions  were  adopted  by  the  House,  though  by  a 
sectional  vote.^ 

1  February  i6,  1819;  Eenton,  vol.  vi,  p.  450. 


142     A    CONSTITUTIONAL    HISTORY    OF 

On  the  following-  day  Taylor,  of  New  York,  moved  that 
the  clause  excluding  slavery  should  be  embodied  in  the 
bill  then  pending  for  a  territorial  government  for  Arkan- 
sas.^ This  at  once  alarmed  the  supporters  of  slavery. 
Was  slavery  to  be  excluded  both  from  new  states  and 
from  territories  ?  By  what  right  could  Congress  impose  a 
distasteful  condition  upon  the  citizens  either  of  a  state 
or  of  a  territory?  Were  not  the  people  themselves  the 
proper  judges  of  their  constitutional  rights?  McLane, 
of  Delaware,  well  knowing  the  interpretation  which  the 
southern  people,  and,  indeed,  the  majority  of  the  people 
of  the  United  States  put  upon  the  ordinance  of  1787,  that 
the  region  north  of  the  Ohio  River  had  been  given  up 
exclusively  to  freedom,  with  the  understanding  that  the 
region  south  of  the  line  should  be  exclusively  for  slavery, 
now  proposed  that  some  line  should  be  fixed  west  of  the 
Mississippi,  north  of  which  slavery  should  be  forbidden. 
It  was  believed  that  such  an  arrangement  could  easily  be 
made,  as  the  vast  region  west  of  the  river  would  give 
ample  room  both  for  freedom  and  slavery ;  but  the  clause 
to  forbid  the  introduction  of  slavery  west  of  the  Missis- 
sippi was  lost  by  one  vote.  For  the  establishment  of  a 
dividing  line  the  majority  was  two,  but  on  reconsideration 
the  matter  was  struck  out ;  the  small  majority  indicating 
the  even  division  of  opinions.  Taylor  then  proposed  the 
line  of  36°  30'  north  latitude.  Several  other  lines  were 
suggested,  but  Arkansas  was  organized  as  a  territory  with- 
out restriction  of  slavery.  On  the  17th  of  February  the 
Senate  took  up  the  Missouri  bill,  struck  out  the  Tallmadge 
amendments  and  passed  the  bill.  Thus  the  House  had 
passed  a  bill  for  the  admission  of  Missouri  with  restriction 
of  slavery,  and  the  Senate  had  passed  one  without  it ; 
neither  would  recede  from  its  position,  and  Congress 
adjourned. - 

When  it  re-assembled,  on  the  6th  of  December,  the 
Missouri  question  had  become  a  great  national  issue,  the 
first  clearly  defined  sectional  issue  since  the  organization 
of  the  government.  On  the  8th,  Scott,  the  delegate  from 
Missouri,  again  presented  petitions  for  its  admission,  and 

1  Henton's  Abiidgment,  vol.  vi,  p.  666. 
*  Annals,  p.  1572. 


THE    UNITED    STATES  143 

Strong,  a  New  York  member,  announced  that,  at  an  early 
day,  he  would  introduce  a  bill  prohibiting  slavery  within 
the  territories  of  the  United  States.  Meanwhile  the 
people  of  Maine  had  asked  for  admission,  and  a  bill  to 
that  end  was  introduced  in  both  Houses.  The  House  bill 
passed  on  the  3d  of  January.  Might  not  the  fate  of  Maine 
and  Missouri  be  settled  by  a  single  bill  ?  On  the  6th,  the 
enabling  act  for  Maine  which  had  been  passed  by  the 
House  was  taken  up  in  the  Senate,  and  it  was  proposed  to 
incorporate  within  it  a  clause  for  the  admission  of 
Missouri.  In  vain  did  the  restrictionists  attempt  further 
amendment  by  adding  the  clause  from  the  ordinance  of 
1787,  forbidding  slavery;  the  Senate  as  a  body  had  little 
sympathy  with  "the  idea.  On  the  i8th,  Jesse  B.  Thomas, 
a  senator  from  Illinois,  offered  a  bill  which  forbade  slavery 
in  territories  organized  north  and  west  of  the  proposed 
state  of  Missouri,  and  it  passed  to  a  second  reading. 

Meanwhile,  the  state  legislatures  had  taken  up  the  Mis- 
souri controversy  and  were  sending  resolutions  to  Con- 
gress, some  opposing,  some  favoring  the  restriction  of 
slavery.  The  sentiment  of  the  country  was  divided. 
Finally,  by  a  majority  of  two  votes,  on  the  i6th  of  Feb- 
ruary the  Senate  united  the  enabling  acts  for  Maine  and 
Missouri.^  Senator  Thomas  then  proposed  his  compro- 
mise, that  in  all  territories  west  of  the  Mississippi  and 
north  of  36°  30'  slavery  should  be  prohibited,  except 
within  the  limits  of  the  state  of  Missouri. ^  On  the  next 
day  he  added  a  fugitive  slave  clause  to  the  compromise, 
which  as  thus  amended  passed  the  Senate  by  a  majority 
of  thirty-four  to  ten.  The  Maine-Missouri  bill,  which 
now  contained  the  Thomas  compromise  as  it  had  passed 
the  Senate,  went  to  the  House,  but  there  it  entered  into  a 
very  different  atmosphere.  The  House  speedily  rejected 
the  Missouri  rider  and  the  Thomas  amendment,  and  took 
up  its  own  bill,  which  contained  the  Taylor  restrictions, 
and  the  debate  plainly  showed  that  no  bill  was  likely  to 
pass  that  did  not  contain  a  clause  of  some  kind  restricting 
slavery.  The  Senate  gave  notice  that  it  would  insist  on  its 
amendment,  and  the  majority  seemed  in  favor  of  limiting 
slavery.  The  Senate  gave  notice  that  it  would  insist  on  its 
^  Benton,  vol.  vi,  p.  450.         2  February  17,  1820;  Id.  p.  451. 


144     A    CONSTITUTIONAL   HISTORY    OF 

own  amendments,  and  the  House,  by  a  vote  of  ninety- 
seven  to  seventy-six,  insisted  on  its  disagreement  to  the 
Senate  bill. 

The  situation  was  complex.  The  friends  of  Missouri 
were  willing  to  vote  the  Thomas  compromise  because  it 
would  admit  the  new  state  with  slavery,  but  they  knew 
that  the  House  would  not  pass  the  Maine  and  Missouri 
acts  in  one  bill.  There  was  only  one  means  of  solution, 
which  Thomas  proposed  in  the  Senate ;  namely,  a  com- 
mittee of  conference.  To  this  the  House  agreed.  Mean- 
while the  House  had  passed  its  own  bill  with  Taylor's 
restrictions,  on  the  ist  of  March,  and  sent  it  to  the  Senate.^ 
On  the  next  day  the  Senate  substituted  the  Thomas  com- 
promise for  the  Taylor  restriction,  and  returned  the  bill 
to  the  House.  The  two  bills  then  went  to  the  conference 
committee,  which  soon  reported.  The  Senate  should 
abandon  its  attempt  to  unite  Maine  and  Missouri  in  one 
bill,  and  Maine  should  be  admitted.  The  House  should 
abandon  the  slavery  restrictions  within  the  state  of  Mis- 
souri ;  the  Thomas  amendment  should  be  accepted  and 
slavery  be  forbidden  north  and  west  of  Missouri.  The 
conference  report  was  finally  accepted  on  the  2d  of  March. ^ 
Maine  was  admitted,  on  the  15th,  and  the  people  of 
Missouri  were  authorized  to  frame  a  constitution. 

The  state  convention  assembled  on  the  12th  of  June, 
at  St.  Louis,  and  completed  its  work  in  seven  weeks,  but 
the  constitution  which  it  framed  contained  a  provision, 
suggested  by  Thomas  H.  Benton,^  which  at  once  renewed 
the  Missouri  controversy.  The  general  assembly  of  Mis- 
souri was  instructed  to  pass,  as  soon  as  possible,  such  laws 
as  might  be  necessary  to  prevent  free  negroes  and  mu- 
lattoes  from  coming  into  the  state,  or  settling  in  it,  under 
any  pretext.* 

On  the  23d  of  November,  the  select  committee  of  the 
House,  to  whom  the  Missouri  constitution  had  been  re- 
ferred, made  its  report.  Benton's  provision  was  its  chief 
theme.  It  might  be  repugnant  to  the  Constitution,  if  it 
was  construed  as  applying  to  citizens  of  the  United  States, 

'  Annals,  p.  1572.  ^  Id.  p.  471. 

8  Thirty  Years'  View,  vol.  i,  p.  8. 

*  Missouri  Constitution,  1820,  Article  III,  section  26. 


THE   UNITED    STATES  145 

but  as  the  clause  might  be  found  in  the  laws  of  five  states, 
it  was  not  without  precedent.  If  too  broad  a  construction 
were  put  upon  the  provision  affecting  the  privileges  and 
immunities  of  citizens  of  the  several  states,  their  powers 
of  self-defence  would  be  broken,  and  the  result  would  be 
a  consolidated  government.  The  constitutions  of  all  the 
states  in  the  Union  settled  beyond  controversy  the  right 
of  a  state  to  discriminate  between  white  and  black  men 
both  in  civil  and  political  privileges.  As  soon  as  a  people 
formed  a  state  government,  they  became  sovereign  and 
independent,  and  the  courts,  not  Congress,  must  determine 
the  constitutionality  of  laws.  The  committee  briefly  con- 
cluded its  report  in  favor  of  the  admission  of  the  new 
state  of  Missouri. 

A  new  question  was  now  before  Congress.  Granting 
that  it  could  impose  conditions  upon  a  territory,  was  it  true 
that  it  could  impose  them  upon  a  state?  The  constitu- 
tionality of  the  Benton  provision  should  be  left  to  be  de- 
termined by  the  supreme  court.  True,  the  clause  excluded 
free  persons  of  color  who  were  citizens  of  another  state, 
but  they  were  excluded  by  state  constitutions  already  in 
force.  Why  attack  Missouri  rather  than  any  of  these 
states  ?  Missouri  had  organized  a  state  government,^  and 
was  already  sovereign.  To  this  it  was  replied  that  Mis- 
souri was  not  yet  a  state,  for  her  senators  and  repre- 
sentatives had  not  yet  been  admitted  to  Congress.  Her 
constitution  had  not  yet  been  approved,  and  her  people  had 
been  authorized  to  form  one  that  would  not  be  repugnant 
to  that  of  the  United  States.  Whether  her  constitution 
was  satisfactory  could  alone  be  decided  by  Congress.  In 
seven  states  ^  free  persons  of  color  were  citizens,  and  there 
was  nothing  in  the  constitution  of  these  states  prohibiting 
free  men  of  color  from  voting.  It  was  not  claimed  that 
the  right  of  citizenship  gave  the  right  to  vote,  but  only 
that  the  right  of  free  locomotion  was  indispensable  to 
citizenship. 

The  question  of  the  status  of  free  persons  of  color  had 
not  before  arisen  in  Congress.     There  were  more  than 

1  XIX,  Niles's  Rrs^ister,  p.  51. 

2  New  Hampshire,  Vermont,  Massachusetts,  New  York,  Pennsyl- 
vania, North  Carolina,  and  Tennessee. 

10 


146     A    CONSTITUTIONAL   HISTORY    OF 

three  hundred  thousand  such  people  in  the  country  in 
1820,  of  whom  nearly  sixty  thousand  were  males  of  voting 
age/  The  subject  of  negro  suffrage  was  a  reform  agi- 
tated in  New  York  at  this  time,  and  was  soon  embodied 
in  its  constitution  of  1821,  which  made  explicit  provision 
for  admitting  free  negroes  as  electors.  It  imposed  a 
property  qualification  of  two  hundred  and  fifty  dollars  in 
realty  upon  them,  and  required  a  longer  residence  than 
for  white  men ;  but  having  complied  with  these  condi- 
tions, a  free  man  of  color  in  that  state  was  empowered  to 
vote  at  any  election.  At  the  time  of  the  Missouri  com- 
promise the  election  laws  of  New  York  enabled  free 
persons  of  color  to  vote.  Such  persons  had  voted  in 
Tennessee  ^  and  North  Carolina,^  and  had  long  been  ac- 
customed to  vote  in  New  Hampshire,  Vermont,  and 
Massachusetts ;  but  public  sentiment  in  the  two  southern 
states  practically  abrogated  the  right,  and  in  New  Eng- 
land, New  York,  and  Pennsylvania,  by  the  strict  letter  of 
whose  law  they  might  vote,  public  opinion  practically 
kept  them  from  the  polls.  But  public  sentiment  was  not 
the  strict  letter  of  the  Constitution.  This  was  evident 
from  the  debate  in  Congress  on  the  constitution  of  Mis- 
souri. It  was  precipitated  there  somewhat  suddenly  by 
the  motion  of  Cobb,  of  Georgia,  presented  on  the  12th  of 
January,  1821,  that  the  journal  should  be  corrected  so  as 
to  read',  "  the  state  of  Missouri,"  referring  to  three  memo- 
rials on  the  public  lands  which  had  been  presented  to  the 
House  on  the  preceding  day  from  the  Missouri  legislature. 
The  vote  was  a  tie.  The  House  had  refused  to  recognize 
Missouri  as  a  state,  therefore  it  must  be  a  territory,  but 
by  a  vote  of  one  hundred  and  fifty  to  four  it  refused  to 
designate  it  on  the  journal  as  a  territory. 

In  the  Senate,  meanwhile,  the  committee  to  whom  the 
Missouri  constitution  had  been  referred,  had  reported  a 
resolution  on  the  29th  of  November,  declaring  the  state 
admitted.     The  Benton  provision  was  the  subject  of  con- 

1  For  their  status  in  the  country,  see  "The  Constitutional  History  of 
the  .American  People,  1776-1S50,"  vol.  i,  chap.  xii. 

2  Caldwell's  "  Constitutional  History  of  Tennessee,"  p.  93. 

8  Proceedings  and  Debates  of  the  North  Carolina  convention,  June  4- 
July  II,  183s,  pp.  355  2ind passim. 


THE    UNITED    STATES  147 

tention  here  as  in  the  House.  Eaton,  of  Tennessee,  pro- 
posed to  avoid  all  difficulty  by  declaring  that  the  act  of 
admission  should  not  be  construed  as  giving  the  assent 
of  Congress  to  any  provision  in  the  Missouri  constitution 
which  might  be  contrary  to  the  Constitution  of  the  United 
States;  but  his  proposition  was  rejected.  The  senators 
knew  that  in  every  state  in  the  Union  at  this  time  there 
was  an  acknowledged  discrimination  against  the  African, 
whether  slave  or  free.  Morrill,  of  New  Hampshire,  proved 
from  the  records  of  his  own  state,  and  from  those  of 
Vermont  and  Massachusetts,  that  free  men  of  color  had 
exercised  the  privileges  and  enjoyed  the  immunities  of 
citizens,  which  he  thought  was  enough  to  warrant  the 
rejection  of  the  Missouri  constitution.  On  reconsider- 
ation Eaton's  amendment  was  then  carried. 

The  House  then  took  up  the  Senate  resolution,  admit- 
ting Missouri.^  Clay  promptly  declared  himself  in  favor 
of  it,  but  most  of  the  members  from  the  slave  states 
declared  against  it.  Opinions  were  so  various  and  con- 
flicting that  the  House  failed  to  adopt  either  the  Senate 
resolution  or  one  of  its  own.  It  was  at  this  time  that 
Clay  came  forward  with  another  compromise.  Let  the 
Senate  resolution  be  referred  to  a  special  committee  of 
thirteen ;  substitute  for  the  Senate  resolution  one  ad- 
mitting Missouri,  upon  the  condition  that  the  state  should 
never  pass  a  law  preventing  any  description  of  persons 
from  going  into  the  state  and  settling  there,  who  were, 
or  who  might  become,  citizens  of  any  state  in  the  Union. 
The  legislature  of  Missouri  should  be  given  until  the  4th 
of  November  to  pass  an  act  in  conformity  to  the  resolution 
and  to  communicate  it  to  the  President,  who  should  pro- 
claim the  fact,  and  Missouri  should  be  admitted  without 
further  action  of  Congress. 

The  House  took  up  the  report  of  Clay's  committee  on 
the  1 2th,  and  at  first  rejected  both  Clay's  amendment  and 
the  Senate  resolution,  but  reconsidered  its  action  on  the 
following  day  and  resumed  the  debate.  General  Pinckney 
of  South  Carolina,  a  member  of  the  convention  that 
framed  the  Constitution,  was  at  this  time  a  member  of  the 

1  January  29,  1821. 


148     A    CONSTITUTIONAL   HISTORY    OF 

House.  He  declared  that  he  was  the  author  of  the  clause  ^ 
in  the  Constitution  relating  to  the  privileges  and  immuni- 
ties of  citizens  of  the  several  states,  and  that  at  the  time 
he  drew  it,  he  knew  perfectly  that  there  was  no  such  thing 
in  the  Union  as  a  black  or  colored  citizen,  and  that,  not- 
withstanding all  that  had  been  said  on  the  subject,  he  did 
not  believe  that  such  a  person  existed  in  1821.  He  then 
proceeded  to  show  that  free  persons  of  color  had  never 
been  citizens  of  the  United  States,  or  possessed  the  rights 
of  white  men,  and  that  they  were  incapable  of  exercising 
them. 

The  time  for  counting  the  electoral  vote  of  1820  was 
fast  approaching,  and  the  friends  of  peace  and  order  were 
anxious  to  avoid  possible  tumult  in  case  any  effort  was 
made  to  have  the  vote  of  Missouri  counted.  When  the 
day  arrived,  and  the  vote  of  Missouri  was  announced,  all 
semblance  of  order  in  the  House  vanished ;  but,  happily, 
the  result  of  the  election  did  not  depend  on  the  three  votes 
of  Missouri ;  otherwise,  so  great  was  the  excitement, 
there  might  have  been  civil  war.  The  restrictionists  were 
immovable  in  their  hostility  to  the  Benton  clause  in  the 
Missouri  constitution,  but  it  was  believed  that  the  friends 
of  the  proposed  state  were  willing  to  make  a  compromise. 
This  condition  of  things  made  possible  the  amicable  settle- 
ment which  Clay  now  initiated.  On  the  22d  of  February, 
1821,  he  moved  for  a  grand,  joint  committee  of  confer- 
ence, liis  wishes  prevailed ;  the  Senate  concurred ;  the 
House  elected  twenty-three  members,  and  the  Senate  ap- 
pointed seven.  Clay  was  made  chairman  of  the  House 
committee,  and  John  Holmes,  one  of  the  senators  from 
Maine,  was  made  chairman  of  the  committee  from  the 
Senate.^  The  committee  weighed  carefully  the  evidence 
before  it ;  on  the  one  side,  the  vigorous  sentiment  of  a  new 
state  hostile  to  negro  suffrage ;  on  the  other,  the  equality 
of  the  states,  the  civil  rights  of  negroes  in  some  states,  and 
the  rights  of  citizens  of  one  state  to  civil  privileges  in 
another.  On  the  28th  the  grand  committee  reported,  and 
its  conclusions  after  a  short  debate  were  approved  by  both 
Houses,  but  not  until  the  2d  of  March  did  its  report 
become  a  law.    The  Missouri  legislature  should  repudiate 

^  There  is  no  other  direct  evidence  that  P^nckney  was  the  author  of 
the  clause  in  question;  see  Madison's  testimony,  Elliot,  vol.  v,  p.  578. 
'^  Annals,  pp.  1219  et  seq. 


THE    UNITED    STATES  149 

the  Benton  provision.  This  it  did  in  June,  and,  in  August, 
President  Monroe  by  proclamation  declared  that  Missouri 
was  a  state  in  the  Union. ^ 

The  constitutionality  of  the  Missouri  compromise  was 
not  decided  in  the  courts  until  thirty-seven  years  had 
passed,-  and  the  decision  then  rendered  was  speedily  set 
aside  by  the  civil  war;  but  during  the  intervening  time 
the  question  was  discussed  continuously  in  one  form  or 
another.  At  the  time  of  the  original  agitation,  the  consti- 
tutionality of  federal  laws  in  restriction  of  slavery  was 
maintained  by  no  less  an  authority  than  John  Jay,  who 
held  that  the  power  of  Congress  to  prohibit  the  importa- 
tion and  immigration  of  slaves  was  unquestionable,  and 
applied  alike  to  old  states  and  to  new,  at  its  discretion. 
He  considered  slavery  repugnant  to  the  principles  of  the 
revolution.^  Webster's  opinion  was  embodied  in  a  me- 
morial, of  which  he  was  the  author,  against  the  extension 
of  slavery  sent  forth  by  a  meeting  of  the  citizens  of 
Boston.*  He  argued  that  the  power  to  regulate  commerce 
gave  Congress  complete  authority  to  regulate,  and  there- 
fore to  restrict,  slavery.  But  there  were  contrary  opinions 
of  which  the  most  influential  was  Madison's,^  declaring 
the  restriction  of  slavery  by  Congress  unconstitutional, 
and  thus  anticipating  the  decision  of  the  supreme  court 
in  the  Dred  Scott  case. 

The  controversy  of  the  admission  of  Missouri  into  the 
Union  clearly  involved  the  supremacy  of  the  principles  of 
republican  government,  and  chiefly  the  rights  of  the  citi- 
zen and  the  sovereignty  of  the  nation.  There  was  bound 
to  come  a  time  when  free  persons  of  color,  in  a  country  in 
which  most  of  the  race  were  slaves,  would  be  the  anom- 
alous factor  in  practical  politics.  H  all  negroes  in 
America,  in  1820,  had  been  slaves,  or  all  had  been  free 
men,  the  controversy  over  Missouri  could  not  have  arisen. 
But  the  anomaly  of  free  negroes  as  citizens  in  a  country 
in  which  the  legal  status  of  the  race  was  for  the  greater 
part  one  of  slavery,  compelled  one  of  three  conclusions : 

1  Richardson,  vol.  ii,  p.  95. 

2  Dred  Scott  z^.  Sandford,  19  Howard,  393  (1857). 

3  Jay  to  Elias  Houdinot,  November  17,  1819. 

*  Ni'les's  Register,  vol.  xvii,  p.  242;  Wilson's  "  Rise  and  Fall  of  the 
Slave  Power,"  vol.  i,  p.  150;  see  also  Niles,  vol.  xvii,  p.  241. 
^  Works,  vol.  iii,  p.  149. 


I50     A    CONSTITUTIONAL    HISTORY    OF 

either  the  negro  must  be  denied  pohtical  rights,  or  the 
domain  within  which  he  might  possess  those  rights  must 
be  dearly  defined ;  or  he  must  be  admitted  to  political 
rights  without  discrimination.  The  essential  question  was 
whether,  under  the  constitutions  and  laws  in  force  in 
America,  he  had  the  same  rights  as  the  white  man. 

The  agitation  over  Missouri  brought  to  light  the  ele- 
mental forces  in  conflict  within  the  country  over  slavery 
and  the  rights  of  free  negroes.  Had  the  federal  govern- 
ment authority  to  restrict  slavery  by  excluding  it  from  any 
part  of  the  public  domain?  Had  it  authority  to  pre- 
scribe conditions  for  the  admission  of  a  state  into  the 
Union  which  would  recognize  practically  the  citizenship 
of  free  negroes  ? 

The  controversy  in  1820  terminated  triumphantly  for 
the  principle  that  the  sovereignty  of  the  general  govern- 
ment enabled  it  both  to  restrict  slavery  in  territories,  and 
to  protect  negro  citizens  as  it  would  protect  white  citizens : 
a  state  could  not  refuse  admission  to  either. 

Looking  backward  now,  upwards  of  a  century  after  the 
time  of  this  profound  agitation,  culminating  in  the  Mis- 
souri compromise,  we  can  see  that  the  settlement  of  the 
controversy  marks  a  distinct  phase  in  the  evolution  of 
popular  government  in  America.  Unquestionably  the 
agitation  was  the  most  serious  and  alarming  which  arose 
during  the  first  half  century  of  our  national  existence. 
The  compromise  was  more  than  a  mere  giving  and  taking 
between  the  states  and  the  United  States.  It  was  a  clearer 
definition  of  national  sovereignty  and  of  federal  relations 
than  had  before  been  made.  It  was  a  practical  illustration 
and  application  of  the  principle  laid  down  by  Hamilton  in 
"  The  Federalist,"  that  "  the  government  of  the  Union 
must  possess  all  the  means  and  have  a  right  to  resort 
to  all  the  methods  of  executing  the  powers  with  which  it 
is  intrusted  that  arc  possessed  and  exercised  by  the  govern- 
ments of  the  particular  states.^  More  than  this,  the 
government  of  the  Union  must  possess  and  exercise 
the  powers  necessary  to  its  own  preservation,^  and  this 

1  "The  Federalist,"  No.  XVI. 

2  Id.  No.  LIX. 


THE   UNITED    STATES  151 

principle,  truly  applied,  signifies  more  than  the  mere  con- 
tinuance of  the  Union.  It  signifies  that  the  general  govern- 
ment is  identified  with  the  essential  interests  of  the  entire 
people.  Had  Missouri,  in  1821,  been  suffered  to  inaugu- 
rate a  state  government  which  would  discriminate  against 
citizens  of  other  states  and  refuse  them  residence,  the 
consequence  must  have  been  inter-state  hostility.  It  mat- 
tered not  whether  other  states  so  discriminated  ;  or  whether 
the  objectionable  citizens  were  negroes.  The  principle  of 
equality,  as  a  w^orking  power  in  a  republic,  was  involved. 
It  was  the  primary  purpose  of  the  Union  to  obliterate 
aggravating  differences  among  the  states.  Thus  the  con- 
clusion, in  the  case  of  Missouri,  marks  a  phase  in  the 
evolution  not  merely  of  a  doctrine  in  republican  govern- 
ment, but  also  of  a  true,  because  an  equitable,  political 
economy.  Of  the  two  elements  in  the  compromise  of 
1820,  that  affecting  and  recognizing  the  citizenship  of 
free  negroes  was  of  greater  importance  than  that  limiting 
slavery  by  the  parallel  36°  30'.  If  the  citizenship  of  the 
free  negro  was  once  established,  the  time  must  come  when 
negro  slavery  must  cease.  The  mere  limitation  of  slavery 
by  an  arbitrary  line  could  not  imply  citizenship  for  the 
negro.  The  compromise  of  1820  clearly  marks  also  the 
close  of  a  phase  in  the  growth  of  popular  government  in 
America  which  may  fittingly  be  called  the  era  of  federa- 
tion. The  experiment  had  worked ;  the  political  theories 
which  took  form  with  the  revolution  had  proved  adminis- 
trable.  Government  is  ever  in  a  state  of  flux ;  crystalli- 
zation may  mean  death.  But  organization  means  life. 
The  principles  laid  down  by  the  Fathers  were  becoming 
clear  to  the  people.  Actual  participation  in  government 
enabled  the  people  to  grasp  them.  In  1820  there  existed 
what  did  not  exist  among  the  people  in  1787,  a  conscious- 
ness, however  obscure,  of  nationality.  Overhead  there  still 
hung  the  clouds  of  provincialism,  and  the  economic  isola- 
tion of  groups  of  the  people,  North,  South,  East,  West, 
and  the  more  serious  isolation  incident  to  obstructions  to 
the  exchange  of  thought  no  less  than  of  the  material 
products  of  life,  darkened  and  hindered  progress.  It  was 
yet  the  day  of  small  things,  but  the  light  of  a  more  perfect 
union  was  breaking. 


152     A    CONSTITUTIONAL    HISTORY    OF 


CHAPTER   VIII 

COMPROMISE 

The  law  of  the  Constitution  has  been  written  as  clearly 
and  authoritatively  by  custom  and  public  opinion  as  by 
Congress  or  the  courts,  a  truth  well  illustrated  during  the 
five  years  following  the  Missouri  compromise.  For  three 
centuries  European  governments  had  looked  upon  the 
American  continents  as  a  free  field  for  colonization,  but 
the  policy  so  long  pursued  received  a  sudden  check.  The 
Spanish  American  states  in  1820  had  revolted  and  were 
asking  the  United  States  for  recognition.  France,  Russia, 
Prussia,  and  Austria,  after  the  fall  of  Napoleon  formed 
the  Holy  Alliance  ^  for  the  purpose  of  maintaining  peace 
and  repressing  revolutions  within  one  another's  territory. 
The  revolt  of  the  Spanish  colonies  in  South  America  was 
immediately  followed  by  the  rumor  that  the  Alliance 
contemplated  their  subjugation  to  Spain.  But  interference 
of  this  kind  was  considered  with  such  disfavor  by  Eng- 
land that  George  Canning,  Secretary  of  State,  suggested 
to  our  representative,  Richard  Rush,  that  the  United 
States  should  take  decided  ground  against  it.  The  wishes 
of  the  British  minister  were  at  once  communicated  to 
President  Monroe,  and  by  him  submitted  to  his  cabinet 
and  also  to  Jefferson  and  Madison. 

In  a  brief  and  masterly  review  of  the  subject,  Jefferson 
declared  that  the  question  involved  was  the  most  momen- 
tous which  had  come  before  him  since  that  of  American 
independence.  "  That,"  said  he,  "  made  us  a  nation  ;  this 
sets  our  compass  and  points  the  course  which  we  steer 
through  the  ocean  of  time  opening  on  us,"  ^  and  he  laid 
it  down  as  a  fixed  and  fundamental  maxim  in  our  govern- 

1  September,  181 5. 

2  October  24,  1823;  Works,  vol.  vii,  p.  315. 


THE   UNITED    STATES  153 

ment,  that  we  should  never  entangle  ourselves  in  the  broils 
of  Europe,  nor  suffer  Europe  to  intermeddle  with  public 
affairs  this  side  of  the  Atlantic.  "  America,  north  and 
south,"  said  he,  "  has  a  set  of  interests  distinct  from  those 
of  Europe,  and  peculiarly  her  own.  She  should,  therefore, 
have  a  system  of  her  own,  separate  and  apart  from  that 
of  Europe."  The  governments  of  the  old  world  were 
laboring  to  become  the  home  of  despotism,  but  our  en- 
deavor should  be  to  make  the  western  hemisphere  the 
home  of  freedom.  In  the  pursuit  of  our  true  policy  only 
one  nation,  he  believed,  could  disturb  us  and  that  was 
England.  If  we  acceded  to  her  propositions  we  would 
detach  her  from  European  alliances  unfriendly  to  us  and 
would  bring  her  mighty  weight  into  the  scale  of  free 
government.  "  Great  Britain,"  he  concluded,  "  is  the 
nation  which  can  do  us  the  most  harm  of  any  or  all  on 
earth ;  and  with  her  on  our  side  we  need  not  fear  the 
whole  world." 

Six  days  later  Madison  replied  to  the  President  ^  and 
in  the  same  spirit.  The  opinion  of  the  cabinet  coincided 
with  that  of  Jefferson  and  Madison.^  Thus  reinforced, 
Monroe  sent  a  message  to  Congress  proclaiming  a  policy 
which  has  ever  since  been  known  by  his  name,  that  the 
time  had  come  when  it  was  proper  to  assert  as  a  principle 
in  our  government  that  the  American  continents,  by  the 
free  and  independent  condition  which  they  had  assumed 
to  maintain,  were  henceforth  not  to  be  considered  as  sub- 
jects for  colonization  by  any  European  power.^  The 
announcement  was  received  with  unconcealed  delight  *  by 
the  British  ministry.  Canning  declared  that  it  would 
prevent  drawing  a  line  of  demarkation  which  he  most 
dreaded,  —  the  arraignment  of  America  against  Europe. 
Monarchy  in  Mexico  and  Brazil,  he  thought,  "  would  cure 
the  evils  of  universal  democracy ;  "  and  prevent  drawing 
this  line.     He  washed  to  counterbalance  the  power  and 

1  Works,  vol.  iii,  p.  338. 

-  For  the  opinions  of  the  Cabinet,  see  Adams's  Memoirs,  vol.  vi, 
pp.  177  et  seq.,  November  7-26,  1823. 

3  December  2,  1823;  Richardson,  vol.  ii,  p.  218.  December  7,  1824; 
Id.  p.  260. 

*  Wharton's  International  Law,  vol.  i  (First  Edition),  p.  276. 


154     A    CONSTITUTIONAL    HISTORY    OF 

influence  of  the  United  States.  He  was  far  from  desiring 
the  extension  of  popular  government,  but  the  Monroe 
doctrine,  if  carried  out,  would  aid  Great  Britain  in  execut- 
ing her  own  plans.  He  welcomed  the  doctrine  for  its 
advantage  to  his  own  government  and  not,  as  Monroe 
primarily  intended,  and  as  Jefferson  had  expressed,  be- 
cause it  would  make  the  western  hemisphere  the  home  of 
freedom. 

But  Monroe  was  not  the  first  American  statesman  to 
advocate  this  doctrine.  Hamilton,  in  1788,  in  "  The  Fed- 
eralist "  ^  had  urged  neutrality  and  a  strong  national  gov- 
ernment, remarking  that  our  geographical  situation  gave 
us  the  ascendancy  in  American  affairs,  and  that,  if  we 
were  bound  together  in  a  strict  and  indissoluble  union 
we  would  be  superior  to  transatlantic  influences  and  would 
be  able  to  dictate  terms  between  the  old  and  new  world. 
Washington  enunciated  the  same  doctrine  as  the  true 
policy  of  the  nation  in  his  proclamation  of  neutrality  of 
1793,  at  the  opening  of  the  French  revolution,^  and  again 
in  his  seventh  annual  message  to  Congress,^  sent  at  the 
time  when  the  French  revolution  was  changing  the  polit- 
ical systems  of  Europe.  He  repeated  his  advice  in  his 
Farewell  Address,*  that  we  should  steer  clear  of  alliances 
with  any  portion  of  "  the  foreign  world."  Adams  and 
Jefferson  urged  the  same  policy,  though  in  very  different 
ways.  Adams  supported  the  alien  and  sedition  laws, 
because  they  contributed  to  this  neutrality,  but  Jefferson 
commended  the  policy  in  his  first  inaugural  as  the  one 
which  nature  had  laid  down  for  us,^  and  later  in  a  mes- 
sage to  Congress." 

When  nearly  eight  years  had  passed  and  Great  Britain 
w'as  threatening  to  take  possession  of  East  Florida,  Mad- 
ison urged  the  seasonableness  of  declaring  that  the  United 
States  could  not,  without  serious  inquietude,  see  any  part 
of  a  neighboring  territory,  such  as  Florida,  in  which  we 
had   deep  concern,  pass   from  the  hands  of   Spain  into 

1  "The  Federalist,"  No.  XI. 
'^  April  22;   Richardson,  vol.  i,  p.  156. 
8  December  8,  1795;  ^^-  v°'-  '<  P-  '^-■ 
<  September  17,  1796;  Id.  vol.  i,  p.  113. 

5  March  4,  1801  ;   Id.  vol.  i,  p.  321. 

6  October  17,  1803;  Id.  p.  357. 


THE    UNITED    STATES  155 

those  of  any  other  foreigni  power.^  It  was  while  the 
United  States  was  engaged  in  the  second  war  with  Eng- 
land that  the  series  of  revolutions  broke  out  in  Mexico, 
Central  and  South  America,  which  led  American  states- 
men again  to  consider  the  application  of  the  doctrine  of 
neutrality,  in  a  more  practical  way  than  before.  Monroe, 
in  his  first  inaugural,  had  urged  that  our  military  defences 
be  strengthened  and  that  we  no  longer  rely  upon  our  dis- 
tance from  Europe  as  our  chief  security.-  The  war  of 
181 2  had  impressively  brought  the  idea  of  neutrality 
before  the  American  people  and  led  them  to  sympathize 
with  the  struggling  republics  south  of  them.  The  policy 
which  Monroe's  predecessors  had  advocated  was,  there- 
fore, an  easy  one  for  him  to  follow,  and  the  success  which 
attended  the  revolutions  in  South  America  offered  the 
occasion  for  the  United  States  to  apply  the  doctrine.  The 
affairs  of  these  southern  republics  were  in  such  a  stage,  in 
18 1 7,  that  our  government  was  obliged  to  pursue  a  policy 
of  neutrality  with  Europe  and  of  commercial  reciprocity 
with  them,  thus  marking  a  complete  transition  in  our 
policy.  These  new  conditions  were  the  principal  subject 
of  discussion  in  Monroe's  annual  message,  in  1817.^  So 
complete  was  the  change  in  our  commercial  relations  with 
the  world  that  from  this  time  every  political  party  has 
advocated  a  policy  of  neutrality. 

In  a  later  message  *  Monroe  returned  to  the  subject, 
announcing  that  the  tJnited  States  had  good  cause  to  be 
satisfied  with  the  policy  which  it  had  adopted.  During  the 
summer  of  1819  the  revolutions  in  South  America  had 
gone  so  far  that  the  new  republics  had  assumed  stable 
governments.  Monroe  commented  on  the  evident  inability 
of  Spain  to  subdue  her  former  provinces  and  urged  the 
revision  of  our  lavv^s  so  as  to  prevent  all  violations  of 
neutrality ;  but  in  his  general  discussion  of  the  policy  he 
carried  its  interpretation  a  step  nearer  one  of  a  guarantee, 
by  the  United  States,  of  republican  institutions  in  both 
North  and  South  America.^     In  1824  the  people  of  the 

1  January  3,  l8li;  Richardson,  vol.  i,  p.  488. 

2  March  5,  1817  ;  Id.  vol.  ii,  p.  4.  ^  December  2  ;  Id   p.  11. 
*  November  17,  1818;  Id.  p.  39. 

s  December  7,  1819;  Id.  p.  54.  Adams  to  Canninp;.  October  2,  1820, 
Memoirs,    vol.    v,   p.    1S2;    see    also    Monroe's    Fourth    Annual    Mes- 


156     A    CONSTITUTIONAL   HISTORY    OF 

United  States  were  more  or  less  convinced  that  by  the 
very  form  of  their  poHtical  institutions,  and  their  situation 
in  the  world,  they  were  under  obligation  to  exercise  their 
influence  to  protect  the  younger  American  republics.^ 
Thus  far  our  government  had  never  been  consulted  re- 
specting any  European  policy,  and  South  America  had 
been  viewed  by  European  nations  as  an  open  field  to  be 
exploited  for  their  own  interests  at  their  will.  This  was 
the  situation  when  Canning  opened  correspondence  with 
our  government  on  the  subject  in  1820. 

The  immediate  effect  of  the  promulgation  of  the  doc- 
trine was  to  assure  the  new  republics  their  independence ; 
but  opinions  have  widely  differed  whether  it  pledged  the 
United  States  to  maintain  a  protectorate  over  them.  There 
is  no  doubt  that  it  put  an  end  to  plans  of  European  inter- 
vention in  American  affairs  and  anticipated  the  retirement 
of  Spain  from  the  new  world.  In  January,  1824,  Clay 
offered  a  resolution  in  the  House"  embodying  the  doctrine, 
but  it  was  not  carried,  and  Congress  has  never  incorporated 
it  in  legislation.  The  principle  of  the  doctrine  was,  how- 
ever, clearly  laid  down  by  the  House  of  Representatives  in 
its  resolution  of  April,  1826,  that  the  people  of  the  United 
States,  in  case  of  European  interference  in  American 
affairs,  would  consider  themselves  free  to  act  as  their 
honor  and  policy  might  at  the  time  dictate.^  The  doctrine 
has  been  reasserted  in  later  times,  on  critical  occasions, 
by  no  fewer  than  seven  of  our  Presidents,*  and  it  may  now 
be  said  to  have  become  a  part  of  the  unwritten  law  of  the 
land. 

No  question  of  constitutionality  was  raised  at  the  time 
of  enacting  the  tariff  bills  of  1789  and  1816,  but  it  came 

sage,  November  14,  1820;  Second  Inaugural  Address,  March  4,1821; 
Fifth   Annual   Message,  December  3,   1821  ;  special  message,  March  8, 

1822,  in  Richardson,  vol.  ii ;  Gallatin  to  Chateaubriand,  Gallatin's  Writ- 
ings, vol.  ii,  p.  271  ;  Adams  to  the  Russian  Minister,  Memoirs,  July  17, 

1823,  vol.  vi,  p.  163;  Adams  to  Richard  Rush,  July  22,  1823,  Register  of 
Debates,  1825-1826,  vol.  ii,    part  2,  p.  31. 

1  Webster's  Works,  vol.  iii,  p.  203. 

2  January  20,  1824;  Benton's  Debates,  vol.  vii,  p.  650. 

*  April  20,  1826;   House  Journal,  p.  451. 

*  Tyler,  1S42;  Polk,  1845,  1847,  1848;  Buchanan,  1858,  i860;  Grant 
(twice).  1870;  Hayes,  1880;  Harrison,  1889;  Cleveland  (twice),  1895. 


THE    UNITED    STATES  157 

forward  forcibly  with  the  tariff  of  1824.  The  protection- 
ists urg-ecl  that  the  power  of  Congress  to  lay  taxes,  to  reg- 
ulate commerce,  and  to  promote  the  general  welfare, 
clearly  gave  authority  for  a  law  of  which  the  chief  purpose 
should  be  protection  of  American  manufactures,  and  they 
used  the  argument,  sustained  by  the  supreme  court  at  the 
time,  that  the  powers  granted  to  Congress  were  not  to 
be  construed  strictly ;  ^  from  which  was  deducible  the 
conclusion  that  Congress  was  empowered  to  act  at  its  dis- 
cretion in  levying  taxes.  But  many  supporters  of  the  tariff 
took  the  view  held  by  Webster  that  the  whole  question  was 
one  of  expediency.^  If  protection  was  carried  too  far,  it 
would  destroy  commerce,  but  the  opponents  of  the  pro- 
tective feature  in  the  tariff  held  to  the  doctrine  which 
Webster  enunciated  in  1820,  —  that  Congress  had  no 
power  to  declare  what  occupations  should  be  pursued  in 
society,  and  what  should  not.  They  held  that  Congress 
could  exercise  the  right  of  taxation  no  further  than  to  raise 
money  necessary  for  the  lawful  purposes  of  the  govern- 
ment. Any  departure  from  this  rule  would  violate  the 
Constitution.  But  if  the  right  to  pass  a  tariff  act  depended 
wholly  upon  expediency,  its  exercise  became  purely  a 
political  matter  and  would  depend  upon  the  results  of  the 
elections.  The  tariff  question  was  soon  to  bring  the 
country  to  the  verge  of  civil  war. 

Forty  years  had  now  passed  since  the  making  of  the 
Constitution,  but  its  general  character  was  by  no  means  yet 
agreed  upon.  The  most  important  fact  in  its  history  was 
that  it  had  proved  a  working  system  of  government. 
Parties  had  struggled  over  its  meaning,  and  the  supreme 
court  had  handed  down  a  number  of  decisions  placing  some 
of  its  principles  beyond  dispute.  The  states  seemed  to 
have  fallen  into  their  proper  orbits.  Less  was  now  heard  of 
the  need  of  constitutional  amendments.  The  government 
had  proved  its  capacity  to  protect  itself,  and  the  Missouri 
compromise  had  demonstrated  its  sovereignty.  The  ad- 
ministration of  John  Quincy  Adams,  1825-1829,  was 
crowded  with  political  problems,  many  of  which  were  left 

1  Gibbons  v.  Ogden,  9  Wheaton,  i  (1824). 

2  Works,  vol.  iii,  p.  94;  Speech  of  April  ist  and  2d,  1824. 


158     A    CONSTITUTIONAL    HISTORY    OF 

unsettled.  His  nomination  of  special  envoys  to  attend  the 
Pan-American  Congress,  an  assembly  proposed  by  the  new 
republics  for  the  purpose  of  considering  the  interests  of  all 
America,  precipitated  a  stormy  debate  in  both  Houses  ^ 
over  the  diplomatic  powers  of  the  President ;  but  the 
debate  was  rather  for  the  purpose  of  accumulating  polit- 
ical capital  against  Adams  than  to  settle  a  constitutional 
question.  The  appropriation  finally  granted  -  for  the 
envoys  was  a  confession  by  Congress  that  the  President 
had  acted  fully  within  his  powers.  The  tariff  of  1828, 
known  as  the  tariff  of  abominations,  renewed  the  whole 
controversy  over  the  power  of  taxation  and  was  the  imme- 
diate cause  of  the  fierce  political  struggles  which  followed. 
Jackson  came  to  the  presidency  in  1829,  convinced  that 
he  was  commissioned  by  the  people  to  institute  public 
reforms.^  He  declared  that  the  revenues  of  the  govern- 
ment ought  to  be  raised  without  discrimination  in  favor 
of  any  of  the  important  interests  of  the  country,  and 
referred  with  care  to  the  distinction  between  the  rights  of 
the  sovereign  members  of  the  Union  and  the  powers 
which  they  had  granted  to  the  Confederacy, — the  name  by 
which  he  designated  the  national  government.  He  be- 
lieved that  the  powers  of  the  President  were  limited  to 
the  administration  of  the  laws.  It  was  not  long  before 
he  had  ample  opportunity  to  put  his  theories  to  the  test. 
The  tariff  of  1828  was  as  provocative  of  critical  events  in 
our  history  as  the  alien  and  sedition  acts.  Six  southern 
states  *  immediately  protested  against  it  as  destructive  of 
the  best  interests  of  their  people,  and  for  such  protests 
against  congressional  legislation  there  were  some  famous 
precedents.  Had  not  New  England  threatened  to  nullify 
the  acts  of  Congress  growing  out  of  the  Louisiana  treaty 
of  1803?  Had  it  not  then  threatened  secession,  and  again, 
when  the  Hartford  convention  met?  So,  too,  had  not 
Georgia  repudiated  the  decision  of  the  supreme  court  in 
the  Chisholm  case,  in  1793,  ^^^  again,  thirty-five  years 

1  April,  1826;  Benton's  Debates,  vol.  viii,  pp.  482,  534. 

2  April  22,  1826;  Slatutes  at  Large,  vol.  iv,  p.  158. 

8  Inaugural,  March  4,  1829;  Richardson,  vol.  ii,  p.  436. 
*  Virginia,  North  Carolina,  South  Carolina,  Georgia,  and  Alabama ; 
1828  and  1829.     Also  Mississippi. 


THE   UNITED    STATES  159 

later,  when  she  refused  to  abide  by  the  decision  of  the 
court  in  the  case  of  the  Creek  and  Cherokee  Indians.^ 
The  South  was  agricultural,  and  believed,  primarily  for 
that  reason,  that  the  tariff  was  inimical  to  its  interests. 
It  was  on  this  economic  interpretation  of  the  tariff  that 
the  whole  case  of  nullification  rested.  Low  tariff  and  free 
trade  opinions  were  by  no  means  limited  to  the  South. 
They  were  heard  here  and  there  all  over  the  land.-  But 
the  classic  and  accepted  exposition  of  all  anti-tariff  views 
was  embodied  in  the  South  Carolina  "  Exposition  "  of 
1828.  Sympathizing  with  this,  Calhoun  elaborated  its 
doctrine  in  one  of  the  most  famous  letters  in  our  history.^ 
Before  outlining  this  important  letter  it  is  necessary  to 
trace,  briefly,  the  course  of  events  in  Congress  which  may 
be  said  to  have  led  up  to  it. 

The  tariff  protests  of  the  southern  states  were  received 
by  most  of  the  protectionists  as  of  no  more  importance 
than  customary  party  resolutions.  Their  deep  significance 
was  not  at  first  understood.  Soon  after  their  appearance 
a  question  relating  to  the  public  lands  came  up  in  the 
Senate,*  and  it  was  seized  by  the  leaders  of  the  nullification 
movement  as  an  opportunity  for  attacking,  not  only  the 
tariff,  but  the  system  of  constitutional  interpretation  which 
it  exemplified.  The  southern  protests  represented  the 
tariff  as  a  discrimination  against  portions  of  the  Union  ; 
and  declared  that  Congress  had  exceeded  its  powers,  and 
had  violated  the  true  meaning  of  the  Constitution  by  im- 
posing burdens  of  taxation  unequally  upon  the  several 
states  of  the  Confederacy. 

The  debate  on  the  Foot  resolution  attracted  slight 
attention  till  the  19th  of  January,  when  Senator  Hayne, 
of  South  Carolina,  made  a  powerful  speech,  in  which  he 

1  Niles's  Register,  vol.  xxxvi,  p.  258;  vol.  xxxvii,  p.  189;  vol.  xliii, 
p.  227.     W^orcester  v.  State  of  Georgia,  6  Peters,  515. 

2  See  Preamble  and  Resolutions  adopted  at  the  Exchange  Coffee 
House,  Preparatory  to  choosing  delegates  to  the  Anti-tariff  Convention, 
Boston,  August  16,  1S31  ;  Journal  of  the  Free-Trade  Convention,  Phila- 
delphia, September  30-October  7,  1831 ;  Memorial  Address  of  its  Com- 
mittee to  the  People  of  the  United  States,  New  York,  1832. 

'^  To  James  Hamilton,  Governor  of  South  Carolina,  August  28,  1832; 
Calhoun's  Works,  vol.  vi,  pp.  144-193. 

*  Foot's  Resolution  on  the  Public  I^ands,  December,  1S29. 


i6o     A   CONSTITUTIONAL   HISTORY   OF 

charged  New  England  with  harboring  the  design  of  check- 
ing immigration  into  the  West  and  South,  and  called  upon 
those  portions  of  the  country  to  unite  against  the  East  in 
a  policy  of  free  trade  and  public  lands  on  easy  terms.  To 
this  attack  on  his  native  region  Webster  replied/  on  the 
following  day,  and  showed  how  groundless  were  Hayne's 
charges.  His  speech  was  a  concentration  of  merciless 
logic  which,  he  believed,  reduced  Hayne's  accusations  to 
absurdity.  Mr.  Webster's  manner  rather  than  the  matter 
of  his  speech  offended  Hayne,  who,  on  the  21st,  again 
addressed  the  Senate.^  and  particularly  Mr.  Webster  (who 
he  insisted  should  be  present),  on  the  great  question  of 
the  time,  and  indeed,  of  all  time,  the  foundations  of  our 
government.  The  primary  question,  he  said,  was  whether 
the  colonies,  when  they  became  independent  nations,  in- 
tended to  form  a  federal  or  a  national  Union.  The 
question  was  older  than  the  government,  for  it  had  been 
discussed  to  the  last  detail  in  the  ratifying  conventions 
of  1788. 

Mr.  Webster  had  ridiculed  the  idea,  embodied  in  the 
South  Carolina  protest,  that  a  state  has  a  constitutional 
remedy,  in  the  exercise  of  its  sovereign  authority,  for  a 
gross,  palpable,  and  deliberate  violation  of  the  Constitu- 
tion, He  had  stigmatized  a  union  on  such  a  basis  as  a 
mere  rope  of  sand.  But  the  weight  of  Webster's  personal 
authority  had  not  satisfied  Hayne.  He  threw  into  the 
opposite  scale  the  authority  on  which,  he  said,  South  Caro- 
lina relied,  —  the  doctrine  contained  in  the  report  of  its 
legislature  in  December,  1828,  and  known  as  the  "  South 
Carolina  Exposition."  He  believed  that  this  authority  far 
outweighed  Webster's  personal  opinions ;  for  it  was  "  the 
good  old  republican  doctrine  of  '98,  —  the  doctrine  of  the 
celebrated  Virginia  resolutions  of  that  year  and  of  Madi- 
son's report  of  '99,  that  the  powers  of  the  federal  govern- 
ment result  from  the  compact  to  which  the  states  are 
parties ;  are  limited  by  the  plain  sense  and  intention  of  the 
instrument  constituting  the  compact,  and  are  no  further 
valid  than  as  they  are  authorized  by  the  grants  enumer- 
ated in  that  compact."     In  case  of  a  deliberate,  palpable, 

1  January  20,  1830  ;  Works,  vol.  iii,  p.  248. 

2  Johnston's  American  Orations,  vol.  i,  p.  213. 


THE   UNITED    STATES  i6i 

and  dangerous  exercise  of  powers,  not  granted  by  the  com- 
pact, the  states,  which  he  said  were  the  contracting  parties, 
had  the  right  and  were  in  duty  bound  to  interpose  for 
arresting  the  progress  of  the  evil  and  for  maintaining, 
within  proper  Hmits,  their  own  authorities,  rights,  and  Hb- 
erties.  Nor  was  this  all.  Kentucky  had  responded  to  Vir- 
ginia, and,  on  the  loth  of  November,  1799,  had  sent  forth, 
through  its  legislature,  the  celebrated  resolutions  penned 
by  Jefferson,  which  declared  that  the  states,  each  acting 
for  itself,  were  the  final  judges  of  the  extent  of  power 
delegated  to  the  general  government.  The  doctrine  of 
these  resolutions,  continued  Hayne,  had  gone  to  the 
country,  had  become  a  great  issue  in  1800,  and  had  been 
settled  by  the  election  of  Jefferson,  and  by  turning  over  to 
him  and  his  associates  the  control  of  the  federal  govern- 
ment, and,  as  Jefferson  himself  had  said,  had  thus  saved 
the  Constitution  at  its  last  gasp. 

Elaborating  this  idea  in  masterly  style,  Hayne  con- 
cluded with  the  assertion  that  the  tariff  had  prostrated, 
and  would  soon  ruin,  the  South ;  but  this  great  disaster, 
he  said,  was  not  the  chief  ground  of  her  complaint :  it 
was  the  principle  involved  in  the  contest  which  concerned 
her.  The  discretion  of  Congress  had  been  substituted  for 
the  limitations  of  the  Constitution,  and  thus  the  states  and 
their  people  had  been  brought  to  a  dependence  on  the  vote 
of  the  federal  government,  and  were  left  nothing  which 
they  could  call  their  own.  If  opposition  continued,  there 
remained  only  one  remedy,  that  which  the  immortal  Hamp- 
den had  applied,  —  "  resistance  to  unauthorized  taxation." 

The  South  thus  spoke  with  no  uncertain  doctrine  and 
in  no  uncertain  tone.  If  a  reply  could  be  made,  who  was 
there  to  make  it?  Those  who  had  listened  to  Hayne,  and 
who  sympathized  with  him,  believed  that  the  strength  of 
his  speech  lay  in  the  historical  and  economic  treatment  of 
his  subject.  Many  who  heard  him  were  living  when  the 
Constitution  was  ratified,  and  they  remembered  the  opin- 
ions of  that  time.  They  knew  that  ratification  had  been 
a  federal  not  a  national  act,  and  that  the  states  had  then 
jealously  asserted  their  claims  to  sovereignty.  They  knew 
that  while  Hayne  was  speaking,  Madison,  the  author  of 
the  Virginia  resolutions  and  of  the  report  which  Hayne 


i62     A    CONSTITUTIONAL    HISTORY    OF 

had  cited  as  his  chief  authority,  was  yet  among  the  Hving, 
and  was  the  most  venerated  man  in  America.  They  knew 
that  the  Union  almost  from  its  inception  had  been  under 
the  control  of  the  South.  Southern  statesmen  had  directed 
its  policy  and  filled  its  most  important  offices.  They  knew 
that  the  American  people  had  long  since  favorably  accepted 
the  doctrine  of  '98,  and  that  the  party  which  stood  for  that 
doctrine  had  been  in  power  in  both  Houses  of  Congress, 
and  had  filled  the  office  of  chief  magistrate,  save  during 
what  they  considered  the  interregnum  of  John  Ouincy 
Adams,  since  the  election  of  Jefiferson. 

Only  one  man  could  reply  to  Hayne,  and  his  friends 
were  not  sure  of  him.  Webster  had  sat,  a  most  attentive 
listener,  throughout  the  speech ;  but  even  the  New  Eng- 
land delegation,  and  those  who  knew  him  best,  faltered 
in  their  hopes  that  he  could  make  an  adequate  reply. 
Senator  Bell,  of  New  Hampshire,  plainly  stated  his  fears 
to  Webster,  remarking,  somewhat  sadly,  that  it  was  high 
time  that  the  people  of  the  country  knew  what  the  Con- 
stitution meant.  "  By  the  blessings  of  Heaven,"  answered 
Webster,  "  they  shall  learn  this  day,  before  the  sun  goes 
down,  what  I  understand  it  to  be." 

Of  the  reply  which  Webster  made  to  Hayne  on  the  26th 
and  27th  of  January  ^  the  world  has  long  made  note.  He 
spoke  of  the  Union  as  it  was  in  1830,  not  as  it  existed  in 
its  infancy  and  during  its  early  struggles.  The  nation 
was  no  longer  a  mere  compact,  but  a  living,  breathing, 
sentient  organism.  The  Union  was  an  object  of  human 
sentiment  and  affection,  not  a  mere  legal  contract  between 
thirteen  governments  in  thirteen  petty  states.  Every  point 
made  by  his  adversary  was  answered,  but  all  not  equally 
or  fully.  The  strict  letter  of  the  law  and  the  history  of  the 
country  were  largely  on  Hayne's  side.  He  knew  his 
ground,  and  had  made  the  most  of  its  opportunities. 
Webster,  equally  familiar  with  our  history,  knew  the 
weakness  of  the  South  Carolina  doctrine  as  a  fixed  national 
policy.  He  knew  that  no  government  can  be  administered 
solely  on  its  history.  He  knew  that  the  organic  life  of  the 
Union  is  the  true  corrective  of  its  history,  and  therefore 

1  Works,  vol.  iii,  p.  270. 


THE   UNITED    STATES  163 

he  raised  the  whole  discussion  to  a  higher  level  than 
Hayne  had  attained.  It  was  time  to  leave  the  past  with  its 
abstractions,  its  doctrinaire  policies,  its  hair-splitting  dis- 
tinctions in  constitutional  construction,  and  to  turn  to  the 
American  people  as  a  nation  among  the  powers  of  the 
earth.  The  moral  comprehensiveness  of  the  sentiment 
of  union  must  forever  efface  the  doctrine  of  '98.  Hayne 
had  rebuked  New  England  for  disloyalty  at  the  time  of  the 
Hartford  convention.  Webster  replied  that  if  New  Eng- 
land had  been  disloyal,  and  he  said  that  she  had  not  been 
disloyal,  Hayne  should  extend  his  buffetings  in  like  man- 
ner to  all  similar  proceedings,  wherever  else  found. 

Turning  to  the  main  proposition,  on  which  he  said  the 
whole  debate  hinged,  the  question  was,  "  Whose  preroga- 
tive is  it  to  decide  on  the  constitutionality  or  unconstitu- 
tionality of  the  laws  ?  "  He  did  not  defend  the  tariff,  nor 
attempt  to  prove  that  a  policy  of  protection  is  essential  to 
the  maintenance  of  the  Union.  He  discussed  the  issue 
from  a  larger  outlook,  maintaining  that  the  Union  could 
not  endure,  if  its  own  judgment  was  not  final  on  the  con- 
stitutionality of  its  laws.  This  raised  the  question  of  sov- 
ereignty, and  he  planted  himself  by  the  side  of  the  authors 
of  "  The  Federalist."  He  argued  for  sovereignty  in  the 
nation  and  for  residuary  sovereignty  in  the  states.^  Like 
William  Penn  of  old,  Webster  placed  the  power  with  the 
people,  in  whom  he  declared  is  ever  to  be  found  the  ulti- 
mate political  sovereignty  of  the  nation.  And  then  he 
gave  that  definition  of  the  Union  which  may  be  said  to  be 
the  most  complete  in  our  history.  "  I  hold  it  to  be  a  pop- 
ular government  elected  by  the  people ;  those  who  admin- 
ister it  responsible  to  the  people,  and  itself  capable  of 
being  amended  and  modified  just  as  the  people  may  choose 
it  should  be.  It  is  as  popular,  just  as  truly  emanating  from 
the  people  as  the  state  governments.  It  is  created  for  one 
purpose,  the  state  governments  for  another.  It  has  its 
own  powers,  they  have  theirs.  There  is  no  more  authority 
with  them  to  arrest  the  operation  of  a  law  of  Congress  than 
with  Congress  to  arrest  the  operation  of  their  laws.  We 
are  here  to  administer  a  Constitution  emanating  immedi- 

1  "The  Federalist,"  Nos.  XXXII,  LXXXI. 


i64     A    CONSTITUTIONAL   HISTORY   OF 

ately  from  the  people  and  trusted  by  them  to  our  admin- 
istration. It  is  not  the  creature  of  the  state  governments." 
Direct  colHsion,  therefore,  between  force  and  force,  said 
he,  must  be  the  unavoidable  result  of  the  remedy  for  un- 
constitutional laws  for  which  Hayne  had  contended.  The 
South  Carolinian's  doctrine,  said  Webster,  went  the  length 
of  revolution.  It  was  incompatible  with  any  peaceful 
administration  of  the  government,  and  led  directly  to  civil 
commotion  and  disunion.  When  Webster  had  concluded, 
and  the  last  words  of  his  speech,  "  liberty  and  Union,  now 
and  forever,  one  and  inseparable,"  had  ceased  reverber- 
ating through  the  Senate  chamber,  no  man  who  heard  him 
was  longer  in  doubt  what  the  Massachusetts  statesman 
understood  by  the  Constitution  of  the  United  States.  His 
great  speech  went  forth  to  the  world,  and  lovers  of  the 
Union  everywhere  hailed  him  as  the  "  Expounder  and 
Defender  of  the  Constitution." 

Calhoun,  who  sat  opposite  Hayne,  during  his  speech, 
drank  in  his  words  and  was  satisfied.  Nullification  had 
found  a  voice  more  eloquent  though  no  more  faithful  than 
his  own.  The  youth  of  the  South  henceforth  need  only 
to  recite  the  burning  words  of  Hayne  to  arouse  an  op- 
pressed people  to  sacred  resistance  to  unjust  laws,  and 
history  was  to  be  Hayne's  best  friend.  His  speech  passed 
at  once  into  literature,  and  became  a  popular  selection  at 
school  and  college.  W'hatever  he  had  failed  to  do,  Hayne 
had  not  failed  to  embalm  his  memory  in  the  minds  of  the 
southern  people.  So,  too,  did  W^cbster's  reply  pass  into 
our  literature.  Cicero  took  delight  that  during  his  life- 
time the  boys  of  Rome  were  taught  in  the  schools  to  recite 
his  orations.  W^ebster's  reply  to  Hayne  was  honored  in 
like  manner.  The  memory  of  thousands  to-day  goes  back 
to  the  district  schoolhouse,  sunning  itself  beside  the  dusty 
road,  and  to  the  time  when  the  neighborhood  gathered 
within  it  to  hear  the  boys  declaim.  One  recited  Hayne's 
speech  and  another  Webster's  reply,  and  even  feeble  repe- 
tition stirred  the  passions  of  the  listeners.  It  was  a  tribute 
to  the  power  of  ideas.  Webster's  reply  is  a  mile-stone  in 
our  constitutional  history.  It  was  the  first  forensic  utter- 
ance which  put  our  political  institutions  into  perspective 
and  clothed  them  with  the  imperishable  beauty  of  liter- 


THE   UNITED    STATES  165 

ature.  It  projected  them  into  all  time.  Appealing  to  the 
sensibilities  of  the  American  people,  he  put  their  aspira- 
tions into  palpable  form,  and  since  the  day  of  his  great 
reply  to  Hayne,  writers  and  speakers  of  every  political 
school  have  quarried  from  the  rich  mines  of  his  imagina- 
tion and  eloquence.^ 

Webster  forsook  economic  ground  and  made  his  argu- 
ment almost  wholly  constitutional.  The  two  debators 
were  advocates  of  antagonistic  political  systems.  At  the 
time  when  they  spoke,  industrial  homogeneity  did  not  exist 
in  the  United  States,  and  without  homogeneity  it  is  impos- 
sible to  have  a  national  Union.  Thus  the  discussion  was 
largely  one  of  abstract  propositions,  not  of  concrete,  indus- 
trial interests.  Had  Hayne  limited  the  discussion  to 
economic  conditions,  it  has  been  said  that  Webster  never 
would  have  presumed  to  make  reply;  but  as  soon  as 
Hayne  attempted  to  meet  Webster  on  constitutional 
grounds  he  was  defeated. 

The  great  debate  by  no  means  settled  the  question  at 
issue.  South  Carolina  called  a  convention,^  which  issued 
an  ordinance  of  nullification.^  The  governor  about  the 
same  time  sent  a  message  of  like  import  to  the  people  of 
the  state.*  Calhoun  resigned  the  vice-presidency  in  order 
to  be  free  to  defend  nullification.  It  is  his  great  defence 
in  his  letter  to  Governor  Hamilton  which  embodies  the 
most  complete  exposition  of  the  doctrine.  This  celebrated 
letter,  though  it  may  more  properly  be  called  a  treatise 
on  nullification,  followed  the  lines  which  Jefferson  had 
drawn  in  the  Kentucky  resolutions.  The  Constitution, 
according  to  Calhoun,  was  framed  and  adopted  by  the 
states  and  not  by  the  people  of  the  United  States.  Col- 
lectively the  people  had  never  performed  a  single  political 
act.  Between  the  individual  citizens  of  a  state  and  the 
general  government  there  was  no  direct  and  immediate 
connection  ;  the  relation  was  through  the  state ;  therefore, 
the  Union  was  one  of  states  as  communities  and  not  one 

1  For  Lincoln's  reference  to  him,  see  Herndon's  Lincoln  (Ed.  1889), 
pp.  400,  478. 

2  Octoiier  24,  1832  ;  Niles's,  vol.  xliii,  p.  152. 

8  November  24th  ;  Cone;res.sional  Debates,  vol.  ix,  App.  p.  154. 
*  November  27,  1832;  Niles's,  vol.  xliii,  p.  159. 


i66     A    CONSTITUTIONAL    HISTORY    OF 

of  individuals.  The  Constitution  had  been  submitted  to 
the  states  for  their  separate  ratification,  and  the  ratification 
of  any  other  state,,  or  of  all  the  others  without  its  own, 
created  no  connection  between  a  state  and  the  general  gov- 
ernment, and  imposed  not  the  slightest  obligation.  Thus, 
said  Calhoun,  North  Carolina  and  Rhode  Island  for  a  time 
stood  in  the  relation  of  foreign  states  to  the  general  gov- 
ernment. As  a  sovereign  body  in  the  Union,  a  state  was 
empowered  to  declare  an  unconstitutional  act  of  the  gen- 
eral government  null  and  void. 

Calhoun  did  not  claim  that  a  state  had  the  right  to 
abrogate  an  act  of  the  general  government,  for  he  con- 
ceived that  the  Constitution  itself  annulled  an  unconsti- 
tutional act.     Such  an  act  was  void  of  itself.    He  claimed 
that  the  state  had  the  right  to  declare  the  extent  of  its 
obligation;  from  which  it  followed  that  the  citizen  was 
bound  primarily  to  obey  every  act  of  the  state.    The  Con- 
stitution was  analogous  to  a  treaty  entered  into  by  a  sov- 
ereign state  without  consulting  its  citizens;    from  which 
it  followed  that  the  general  government  was  the  mere 
agent  of  the  states,  and  to  them  the  United  States  was 
responsible.    This  interpretation,  he  claimed,  agreed  with 
the  original  intention  of  the  makers  of  the  Constitution, 
who  had  not  authorized  the  general  government  to  exer- 
cise any  control  over  a  state  in  any  way.     They  had  even 
refused  this  high  power  to  the  supreme  court.     The  gen- 
eral government  was  purely  a  confederation.     In  the  case 
of  the  alien  and  sedition  laws  the  government  had  been 
saved  from  the  consequence  of  its  own  errors  by  public 
opinion.      Nullification   was   the   rightful   remedy   for   its 
unconstitutional  acts.     It  could  not  coerce  a  state,  nor, 
without    violating   the    Constitution,    infringe    upon    any 
rights  of  the  states.    Nullification  might  result  in  secession, 
which  would  be  placing  a  state  beyond  the  pale  of  her 
federal  relation,  so  that  a  state  would  stand  to  the  others 
in  the  relation  of  a  foreign  power.     He  distinguished  be- 
tween nullification  and  secession ;    the  one  being  a  refer- 
ence of  disputes  to  the  parties  themselves,  the  other  to 
their  agents.     The  purpose  of  secession  would  be  the  dis- 
solution of  the  Union,  but  nullification  was  to  confine  the 


THE    UNITED    STATES  167 

agent  within  the  Hmit  of  his  powers ;  therefore  nulHfication 
was  the  true  constitutional  remedy  for  unlawful  acts  of 
the  general  government. 

These  ideas,  composed  in  less  technical  form  and  ad- 
dressed to  the  people  of  the  United  States,  were  sent  forth 
by  the  South  Carolina  convention  of  November,  1832/ 
The  convention  had  declared  the  tariff  laws,  and  par- 
ticularly the  acts  of  Congress  of  May  29th,  and  July  14, 
1832,  null  and  void.  True  to  the  theory  long  held  at  the 
South,  the  nullifying  act  was  done  by  a  sovereign  con- 
vention especially  called  for  the  purpose  and  not  by  a 
state  legislature.-  The  ordinance  of  nullification  led  the 
President  to  issue  a  proclamation  in  which  he  tersely 
defined  the  issue,  and  which  remains  the  most  famous  of 
his  state  papers.  "  I  consider  the  power  to  annul  a  law 
of  the  United  States  assumed  by  one  state,"  said  Jackson, 
"  incompatible  with  the  existence  of  the  Union ;  contra- 
dicted expressly  by  the  letter  of  the  Constitution ;  un- 
authorized by  its  spirit ;  inconsistent  with  every  principle 
on  which  it  was  founded  and  destructive  to  the  great 
object  for  which  it  was  formed."  ^  The  proclamation 
was  followed  on  the  i6th  of  January  by  a  nullification 
message,*  in  which  the  ordinance  was  exhaustively  dis- 
cussed and  the  relations  between  a  state  and  the  United 
States  set  forth.  The  proclamation  and  the  message 
immediately  raised  Jackson  to  a  degree  of  popularity,  and 
with  many  it  must  be  said  of  unpopularity,  which  few 
Presidents  have  known.  The  response  of  public  opinion 
was  immediate  and  overwhelming,  and  from  no  source 
was  it  more  vigorous  than  from  the  state  legislatures, 
which  with  few  exceptions  passed  resolutions  commend- 
ing the  President's  course  and  condemning  that  of  South 

1  Journal  of  the  Convention  of  the  People  of  South  Carolina,  assem- 
bled at  Columbia  on  the  19th  of  November,  1832,  and  again,  March  11, 
1833;  Reports  and  Ordinances,  Columbia,  1833. 

2  For  the  doctrine  of  sovereignty  in  the  convention  see  the  report  of 
the  chief  of  the  department  of  justice  and  police  on  the  powers  of  the 
convention  (I.  W.  Hayne  to  Governor  Pickings)  in  the  Appendix  of  the 
Fourth  Session  of  the  Convention  of  the  People  of  South  Carolina,  held 
in  i860,  1861,  1862;  Columbia,  South  Carolina,  1862,  pp.  649,  667  ;  also 
Sproule  V.  Fredericks  (1892),  62  Mississippi,  S98. 

^  December  10,  1832;  Richardson,  vol.  ii,  p.  640. 
*  Id.  p.  610. 


i68     A    CONSTITUTIONAL   HISTORY    OF 

Carolina.^  But  it  was  the  action  of  the  President  and  of 
Congress  which  constituted  the  most  important  reply  to 
the  ordinance  and  to  the  argument  of  Calhoun  in  his  letter 
to  Governor  Hamilton.  The  President  sent  troops  to 
South  Carolina,-  and  appropriations  were  made  to  collect 
the  duty  by  force. 

Amidst  the  agitation,  the  compromise  tariff  act  of  1833, 
originating  with  Clay,  was  passed,^  as  a  result  of  which 
the  South  Carolina  ordinance  was  suspended  and  soon 
after  repealed.*  The  conclusion  of  the  whole  matter  is 
depicted  in  a  private  letter  ^  sent  to  President  Jackson 
from,  Columbia  by  one  of  his  political  lieutenants  on  the 
day  after  the  repeal  by  the  convention.  Only  four  nulli- 
fiers  had  voted  against  the  repeal,  and  chiefly  because  they 
thought  that  Clay's  bill  "  did  not  fully  abandon  the  prin- 
ciple of  protection."  But  McDuffie,  who  had  been  most 
aggressive  for  nullification,  spoke  lovingly  of  Clay  as  "  our 
great  ally  in  the  West,  whom  we  have  recently  gained," 
and  congratulated  the  convention  on  the  triumph  of  nulli- 
fication through  Clay's  compromise  act.  Governor  Ham- 
ilton made  a  conciliatory  speech.  Jackson's  opinion  was 
endorsed  on  this  letter  in  his  usual  unique  and  forceful 
style.  "  The  Ordinance  &  all  laws  under  it  repealed  — 
so  ends  the  wicked  &  disgraceful  conduct  of  Calhoun 
McDuffie  &  their  co  nullies.  They  will  only  be  remem- 
bered, to  be  held  up  to  scorn,  by  every  one  who  loves 
freedom,  our  glorious  Constitution  &  government  of  laws." 

On  the  constitutionality  of  nullification  men  differed 
then  as  they  differ  now.  The  issue  was  as  old,  and  even 
older  than,  the  government,  and  involved  the  question 
whether  the  Union  was  a  Confederacy  or  a  nation.    To  the 

1  For  a  typical  set  of  resolutions  (with  citation  of  those  of  other 
.states),  see  the  resolves  of  the  General  Court  of  Massachusetts,  January, 
i832-Ai)nl,  1834,  pp.  290-408,  646;  see  the  New  Hampshire  resolutions 
against  legislation  "  On  the  Subject  of  the  Tariff  and  the  Doctrine  of 
Nullification,"  July  6,  1833.     Laws  of  New  Hampshire,  Concord,  p.  137. 

■■'  October  29,  1832:  Congressional  Debates,  vol.  ix,  App.  p.  187,  et  seq. 

8  March  2,  1833;  Statutes  at  Large,  vol.  iv,  p.  629.  The  Force  Bill 
passed  March  2,  1833. 

*  March  16,  1S33;  Statutes  at  Large,  vol.  iv,  p.  632. 

^  Augustus  Fitch  to  the  President  of  the  United  States,  Columbia, 
S.  C,  March  16,  1833,  MS.  letter. 


THE   UNITED    STATES  169 

arguments  of  Webster  and  Calhoun  on  this  question 
nothing  has  ever  been  added.  The  issue  running  to  the 
very  vitals  of  the  government  was  settled  at  the  time  partly 
by  the  vigor  of  Jackson  and  partly  by  the  compromise 
measure  of  Clay.  The  pacificatory  act  with  which  Clay's 
name  is  associated  reduced  the  tariff  by  a  definite  scale, 
and  without  abandoning  the  theory  of  protection,  prac- 
tically made  the  concession  which  moderate  anti-tariff 
men  at  the  South  demanded. 

In  all  his  acts  Jackson  carried  out  the  conception  for- 
mulated in  his  inaugural,  —  that  he  was  especially  com- 
missioned by  the  people  to  conduct  a  reform  in  the 
administration  of  the  government,  and  the  vigor  with 
which  he  handled  the  nullification  question  was  displayed^ 
in  all  his  works.  In  his  message  vetoing  the  act  to  re- 
charter  the  United  States  bank,  he  took  issue  with  the 
supreme  court  as  to  the  constitutionality  of  the  bank,  and 
insisted  that  it  was  neither  necessary  nor  proper  for  Con- 
gress to  transfer  its  legislative  power  to  a  bank :  there- 
fore, the  act  creating  it  was  unconstitutional.  Congress, 
the  executive  and  the  court,  he  said,  must  each  for  itseLL 
be  guided  by  its  own  opinion  of  the  Constitution.  "  Each 
public  officer,  who  takes  an  oath  to  support  the  Consti- 
tution, swears  that  he  will  support  it  as  he  understands 
it,  and  not  as  it  is  understood  by  others,"  from  whichjt- 
followed  that  it  was  as  much  the  duty  of  the  House  of  Rep- 
resentatives, of  the  President  and  of  the  Senate  to  decide 
upon  the  constitutionality  of  an  act  as  it  was  of  the 
supreme  judges  before  whom  it  was  brought  for  settle- 
ment.^ "  The  opinion  of  the  judges  has  no  more  authority 
over  Congress  than  the  opinion  of  Congress  has  over  the 
judges,  and  on  that  point  the  President  is  independent  of 
both.  The  authority  of  the  supreme  court  must  not,  there- 
fore, be  permitted  to  control  Congress  or  the  executive 
when  acting  in  their  legislative  capacities,  but  to  have  only 
such  influence  as  the  force  of  their  reasoning  may  de- 
serve." ^  This  was  a  novel  theory  of  constitutional  inter- 
pretation,  but   it   harmonized   strictly   with   the   form   of 

^  See  per  contra  Webster,  vol.  iii.  pp.  416,  432. 

*  Veto  Message,  July  10,  1832;  Richardson,  vol.  ii,  p.  582. 


\ 


I70     A    CONSTITUTIONAL    HISTORY    OF 

Jeffersonian  democracy  which  Jackson  developed,  and 
was  accepted  by  the  party  to  which  he  belonged.  As 
Jackson  applied  the  doctrine,  it  made  him  the  most  pop- 
ular President  in  our  annals.  He  considered  the  bank 
dangerous  to  the  safety  of  the  government  and  to  the 
morals  of  the  people  as  well  as  unconstitutional ;  there- 
fore, as  part  of  his  policy  he  directed  the  secretary  of  the 
treasury  no  longer  to  deposit  the  money  of  the  United 
States  in  the  bank,  but  to  deposit  it  in  state  banks  which 
he  designated.^  The  secretary,  Taney,  defended  the  re- 
moval on  the  ground  of  expediency.  The  re-election  of 
Jackson  was  understood  by  his  followers  to  have  settled 
the  question  of  the  constitutionality  of  the  bank. 

The  secretary's  course  was  fully  investigated  in  the  Sen- 
ate. On  the  26th  of  December  Clay  declared  against  the 
President.  He  took  issue  with  Jackson  that  his  re-election, 
however  it  might  be  construed  as  expressing  the  will  of 
the  people,  did  not  authorize  him  to  do  unconstitutional 
acts,  and  he  offered  two  resolutions :  the  first  declaring' 
that  the  President  had  assumed  the  exercise  of  a  power 
over  the  treasury  not  granted  him  by  the  Constitution,  and 
the  second,  that  Taney's  reasons  for  the  removal  were 
insufficient."  There  was  nothing  new  in  the  long  debate 
which  followed,  as  all  the  arguments  had  been  heard  at 
the  time  of  the  first  bank  controversy.  Tlie  friends  of  the 
bank  argued  that  the  President's  conduct  violated  the  prin- 
ciple of  contracts  which  the  supreme  court  had  laid  down 
in  the  Dartmouth  College  case.^  The  immediate  result 
of  the  debate  was  a  resolution  of  censure  of  the  President, 
passed  by  the  Senate,  and  embodying  the  constitutional 
views  which  Clay  had  expressed.  The  President  protested 
against  this  left-handed  method  of  impeachment, ■*  and, 
with  his  friends,  began  a  vigorous  campaign,  which  re- 
sulted, three  years  later,  in  the  adoption  of  a  resolution  by 

1  R.  B.  Taney,  Secretary  of  Treasury,  December  4,  1833 ;  Executive 
Document,  No.  II,  vol.  i,  1833-1834. 

2  B .nton's  Del)ate,s,  vol.  xii,  p.  208. 

^  Dartmouth  College  v.  Woodward,  4  Wheaton,  518  (1819) ;  also 
Providence  Bank  v.  Billings  et  al.,  4  Peters,  514  (1830),  both  decisions  by 
Marshall. 

*  Jackson's  Protest,  April  15,  1834;  Richardson,  vol.  iii,  p.  69.  The 
Senate  oidcred  that  it  be  not  entered  on  the  Journal. 


THE   UNITED    STATES  171 

the  Senate,  by  which  the  record  of  Clay's  vote  of  censure 
was  expunged  from  the  journal.  Webster,  and  others  of 
the  whig  party,  protested  against  the  unconstitutionality 
of  a  resolution  thus  altering  the  records,  but  the  demo- 
cratic majority  practically  settled  this  point  when  it  or- 
dered the  resolution  expunged  and  carried  out  the  order.^ 
Clay  and  his  disciples,  who  saw  no  constitutional 
obstacle  to  internal  improvements  at  the  expense  of  the 
general  government,  were  utterly  unable  to  harmonize 
Jackson's  attitude  toward  nullification  with  his  vetoes  of 
internal  improvement  bills.  The  contradiction  is  not  dif[i-~ 
cult  to  explain,  if  we  remember  that  Jackson,  at  heart, 
was  a  believer  in  the  sovereignty  of  the  state  over  all 
matters  exercisable  wholly  within  its  limits.  He  accepted 
the  practice  of  the  government  in  the  question  of  sov- 
ereignty, and  held  that  the  power  to  carry  on  internal 
improvements  within  a  state,  at  federal  expense,  though 
frequently  and  strenuously  attempted,  had  never  been 
exercised  by  the  government.  He  believed  that  Congress 
possessed  no  such  power,  and  early  in  his  administration 
announced  that  no  bill  which  admitted  it  would  receive  his 
official  signature.  He  cited  Jefiferson,  Madison,  and 
Monroe  as  authorities  for  the  opinion  that  the  only  cases 
in  which  the  consent  and  cession  of  particular  states 
could  extend  the  power  of  Congress  were  specified  in  the ' 
Constitution ;  therefore,  he  opposed  every  bill  which  ap- 
propriated money  from  the  national  treasury  for  internal 
improvements  in  a  state,  even  if  the  state  had  consented 
and  Congress  had  disclaimed  any  jurisdiction.-  But  this 
view  of  the  Constitution,  which  forbade  internal  improve- 
ments, enabled  Jackson  to  advocate  the  distribution  of  the 
treasury  surplus  among  the  states  in  1836.  Testing  his 
interpretation  of  the  Constitution  by  the  opinions  of  earlier 
statesmen,  it  will  be  found  that  he  and  they  held  to  the 
doctrine  of  residuary  sovereignty  in  the  states  advocated 
by  Hamilton  and  Marshall,  and  sustained  by  the  supreme 
court  in  later  times. ^     Jackson  differed  from  our  earlier, 

1  January  i6,  1837  ;  Benton's  Debates,  vol.  xili,  p.  155. 

2  Veto  Message,  May  27,  1830;   Richardson,  vol.  ii,  p.  483. 
8  As  in  Texas  v.  White,  7  Wallace,  700  (1S68). 


172      A    CONSTITUTIONAL    HISTORY    OF 

and  especially  from  our  later  statesmen,  in  the  quantity 
of  residuary  sovereignty  which  he  imputed  to  a  state.  His 
pet  theory  of  administration  was  to  preserve  the  nice 
adjustment  of  sovereignty  in  the  nation  and  of  residuary 
sovereignty  in  the  states  which  the  fathers  had  attempted 
in  the  Constitution. 

Van  Buren,  at  the  time  of  his  inauguration  as  President, 
commented  on  the  nice  balance  of  power  between  the  fed- 
eral and  the  state  authorities  as  the  chief  object  of  his 
administrative  care.  His  opinions  of  the  Constitution  re- 
echoed those  of  his  illustrious  predecessor,  and  he  asked 
no  more  than  that  his  own  administration  might  continue 
Jackson's  policy.  The  most  important  positive  declaration 
in  his  inaugural  was  that  of  his  inflexible  and  uncompro- 
mising determination  to  oppose  the  abolition  of  slavery 
in  the  District  of  Columbia  against  the  wishes  of  the  slave- 
holding  states,  and  to  resist  the  slightest  federal  interfer- 
ence with  slavery  in  states  where  it  existed.^  But  there 
were  forces  at  work  in  the  land  of  which  the  President 
made  at  least  no  public  note.  In  the  early  days  of  De- 
cember, three  years  before  the  election  of  Martin  Van 
Buren  to  the  presidency,  sixty  persons  assembled  in  the 
city  of  Philadelphia  and  organized  the  American  Anti- 
Slavery  Society.  Among  that  company  were  Arthur 
Taj^pan,  William  Lloyd  Garrison,  Robert  Purvis,  John 
Grcenleaf  Whittier,  and  Lucretia  Mott.  The  object  of  the 
society  which  these  earnest  people  then  proceeded  to  or- 
ganize was  nothing  less  than  "  the  entire  abolition  of 
slavery  in  the  United  States."  ^  No  organization  devoted 
to  a  more  stupendous  task  was  ever  formed.  Its  members 
were  looked  upon  as  fanatics,  and  their  purpose  as  hope- 
less of  realization.  The  constitutions  and  laws  of  the 
country  were  against  them,  and  no  existing  political  partv 
would  tolerate  them.  Yet  these  private  citizens,  most  of 
whom  were  obscure  men  and  women,  calmly,  yet  boldly, 
organized  a  movement  which  was  to  transform  govern- 
ment and  the  conceptions  of  government  in  America.  Van 
Buren's  inaugural  was  interpreted  by  the  pro-slavery  men 
as  a  promise  on  the  part  of  Van  Buren  that  he  would  with- 

^  March  4,  1837  ;  Richardson,  vol.  iii,  p.  318. 
'  December  4,  1833 ;  Macdonald,  p.  304. 


THE   UNITED    STATES  173 

stand  every  attempt  of  the  abolitionists  even  to  petition 
Congress  for  the  overthrow  of  slavery.  The  constitutional 
aspect  of  his  administration  is  chiefly  of  interest  on  account 
of  the  efforts  which  the  pro-slavery  party  made  to  deny  the 
right  of  petition  when  exercised  for  the  abolition  or  re- 
striction of  slavery.  Calhoun  did  not  hesitate  to  pronounce 
such  petitions  a  violation  of  the  federal  compact,^  and 
throughout  Van  Buren's  term  the  pro-slavery  party  at- 
tempted to  administer  the  government  on  the  basis  of 
Calhoun's  interpretation.  But  the  right  of  petition  was 
too  ancient  and  well  settled,  and  too  well  acknowledged 
as  essential  to  a  republican  form  of  government  to  be 
questioned  ;  therefore,  Calhoun's  resolution,  that  Congress 
would  not  receive  abolition  petitions,  precipitated  a  debate 
which  continued  practically  throughout  Van  Buren's  term. 
Reviewing  the  period  from  the  point  of  time  at  which  we 
now  stand,  we  can  easily  see  that  the  true  objection,  if  there 
could  be  any,  to  petitions  of  any  kind  was  against  their 
expediency  rather  than  against  their  constitutionality ; 
but  in  the  heat  of  party  passion  their  inexpediency  was 
considered  by  pro-slavery  men  as  proof  of  their  violation 
of  the  Constitution.  In  conformity  to  pro-slavery  senti- 
ment the  right  of  petition  was  attacked  and  the  House 
passed  its  notorious  gag  rule,^  by  which,  on  a  motion  for 
the  previous  question,  debate  could  be  cut  off.  For  seven 
years  this  mere  rule  of  the  House  violated  a  principle  of 
the  Constitution.  It  may  be  said  that  from  the  adoption 
of  this  rule  dates  the  national  movement  against  slavery. 
The  election  of  Harrison  and  Tyler,  in  1840,  was  hailed 
by  the  Whigs  as  the  opening  of  an  age  of  reform.  Whig 
principles  of  construction  would  now  triumph,  and  whig 
principles  were  supposed  to  be  broad  and  liberal.  But  the 
sudden  death  of  the  President  struck  down  their  hopes. 
Tyler  had  never  been  a  whig,  nor  sympathized  with  whig 
principles,  of  which  fact  his  veto  messages  were  speedy 
proof.  He  surpassed  Monroe  in  zeal,  though  not  in  pro- 
lixity, in  his  river  and  harbor  vetoes,^  and  outdid  Jackson 

1  See  his  resolutions,  February  27,  1S37 ;  Benton's  Debates,  vol.  xiii, 

P-  567- 

2  May  26,  1836,  renewed  January  18,  1837  ;  repealed  December  3,  1844. 
'  June  II,  1844;  Richardson,  vol.  iv,  p.  330. 


174     A    CONSTITUTIONAL   HISTORY    OF 

in  his  hostility  to  a  bank/  and  his  hostiUty  to  a  tariff  bill 
possessing  any  quality  of  protection  was  equal  to  Cal- 
houn's.- No  other  President  has  taken  so  narrow  a  view 
of  the  Constitution.  But  his  policy  had  its  contradictions, 
of  which  not  the  least  conspicuous  was  his  attitude  toward 
Texas  and  his  recommendation  to  Congress  to  annex 
Texas  by  a  joint  resolution.^  Such  a  mode  of  acquiring 
territory  was  without  precedent,  yet,  if  Louisiana  could  be 
acquired  by  purchase,  might  not  Texas  be  acquired  by  a 
joint  resolution?  Had  Tyler  been  true  to  his  strict  con- 
struction theories,  he  would  have  proceeded  in  a  different 
way.  Like  Jefferson  he  would  have  advised  a  constitu- 
tional amendment,  or,  like  John  Quincy  Adams,  that  the 
states  be  first  consulted  and  their  approval  secured.  But 
the  temptation  was  too  great,  as  has  usually  been  the 
case  for  any  President  who  has  had  an  opportunity  to 
extend  the  boundaries  of  the  country.  Tyler,  like  Jeffer- 
son, for  a  time  abandoned  strict  construction.  His  sug- 
gestion of  a  joint  resolution  was  approved  both  by 
Congress  *  and  the  Texas  convention,^  and  the  new  state 
was  admitted  into  the  Union  without  passing  through  the 
usual  preliminary  territorial  stage,  or  even  submitting  a 
constitution,  as  did  Missouri,  that  should  accord  with  the 
principles  of  the  Constitution  of  the  United  States.® 

But  Tyler's  policy  was  approved  by  the  democratic 
convention  of  1844,  which  nominated  Polk  and  Dallas, 
and  the  final  disposition  of  the  Texas  question  accorded 
closely  with  the  resolution  in  the  democratic  platform, 
that  Texas  should  be  re-annexed  to  the  United  States  at 
the  earliest  practical  period.  The  Whigs  were  silent  on 
the  question.  For  the  time  being  the  constitutional  doc- 
trines of  the  two  parties  were  interchanged  much  as  they 
had  been  at  the  time  of  the  acquisition  of  Louisiana,  and 
both  parties  stood  reversed  on  the  question  of  expediency 

^  August  16,  1841  ;  Richardson,  vol.  iv,  p.  63  ;  September  9,  1841 ;  Id. 
p.  68. 

2  June  20,  1842;  Id.  p.  180;  August  9,  1842;  Id.  p.  183. 

'  December  3,  1844;  Id.  p.  345. 

*  March  i.  1^45. 

^  July  4,  1845;  Journal  of  the  Convention,  July  4-August  28,  1845; 
Austin,  184s;  Debates,  W.  F.  Weeks,  Reporter;  Houston,  i?46. 

6  March  i,  1S45;  Mncdonald's  Select  Documents,  p.  343. 


THE   UNITED    STATES  175 

in  the  Mexican  war  that  followed.  It  would  be  difficult  to 
harmonize  the  policy  of  conquest  during  Polk's  adminis- 
tration, by  which  the  California  country  was  added  to 
the  United  States,  with  the  strict  construction  doctrines 
which  Polk  and  the  members  of  his  party  before  him  had 
professed.^  The  law  of  constitutional  interpretation  is 
usually  the  law  of  opportunism  and  the  pro-slavery  wing 
of  the  democratic  party  saw  in  the  acquisition  of  the 
California  country  a  new  domain  over  which  slavery  could 
be  extended.  Yet  from  a  constitutional  point  of  view  the 
United  States,  by  reason  of  its  sovereignty,  could  acquire 
territory  either  by  treaty  or  conquest.  The  economic 
results  of  the  Mexican  war  were  so  vast  that  the  question 
of  constitutionality  scarcely  attracted  attention.  It  is  one 
of  the  paradoxes  in  our  history  that  the  boldest  applica- 
tion of  loose  construction  theories  was  made  by  the  dem- 
ocratic party  during  the  administrations  of  Tyler  and  Polk. 
The  explanation  is  simple :  that  construction,  it  was  dis- 
covered, offered  the  easiest  method  of  administering  the 
general  government  so  as  to  please  the  majority  of  the 
American  people.  National  morality  was  at  the  point  of 
degradation. 

The  conflicting  and  ominous  elements  in  our  national 
affairs,  at  this  time,  were  plainly  shown  in  the  resolutions 
of  state  legislatures  respecting  the  expansion  of  our 
national  domain  and  the  extension  of  slavery.  Alabama 
led  off  boldly,  in  1837,  with  a  demand  for  the  annexation 
of  Texas,-  and  it  was  speedily  followed  by  other  southern 
states.  The  neglect  or  refusal  of  some  northern  com- 
munities to  aid  in  executing  the  fugitive  slave  act  of  1793, 
was  construed  by  the  South  as  a  dangerous  and  alarming 
attack  upon  its  pro-slavery  rights,^  which,  above  all  others, 
it  considered  higher  and  deeper  than  the  Constitution.* 
It  considered  that  Congress  had  no  power  whatever  over 
slavery,^   though   every   southern   state   did   not   use   the 

1  See  his  message  on  the  war,  May  II,  1846;  Richardson.vol.  iv,  p.  437. 

2  Joint  Resolution,  December  25,  1837;  January  i,  1842.     Laws. 
8  Alabama  Resolutions,  February  14,  1843.     Laws. 

*  Alabama  Resolutions,  January  27,  1845;  Kentucky  Bill  of  Rights, 
Constitution  1850,  Article  XIIL  section  3. 

6  Virginia  Resolutions,  March  8,  1847.     Laws. 


176     A    CONSTITUTIONAL    HISTORY    OF 

words  of  the  Louisiana  legislature,  —  that  the  people  of  the 
South  must  maintain  respect  for  their  institutions,  "  peace- 
ably if  they  can,  forcibly  if  they  must."  ^  Public  opinion 
in  every  slave  state  vindicated  the  Mexican  war,  consid- 
ered the  acquisition  of  Texas  as  no  more  than  its  re- 
annexation,  and  held  that  Congress  had  no  power  to 
impose  conditions  on  slavery  extension  or  in  any  way  to 
trespass  on  state  sovereignty.^  Florida  and  South  Carolina 
went  so  far  as  to  advocate  putting  the  South  in  a  state  of 
military  defence.^ 

Similar  but  less  extreme  resolutions  were  passed  by 
some  of  the  northern  states.  They  agreed  that  the  joint 
occupancy  of  Oregon  with  Great  Britain  should  cease ;  * 
several  strongly  favored  the  re-annexation  of  Texas ;  but 
their  attitude  toward  slavery  was  pronounced  for  its  re- 
striction.^ New  York  demanded  that  it  should  be  for- 
bidden in  the  newly  acquired  regions.  The  most  liberal 
public  sentiment  toward  slavery  was  twice  expressed  by 
the  legislature  of  Ohio,  which  demanded  that  the  ordi- 
nance of  1787  should  be  extended  over  all  the  territory 
acquired  from  Mexico.**  Thus  there  was  a  solid  South 
demanding  the  expansion  of  the  country  to  the  Pacific, 
and  the  extension  of  slavery  over  it  all ;  and  a  divided 
North,  though  not  on  the  question  of  expansion.  The 
North  demanded  that  the  ordinance  of  1787  and  the  prin- 
ciple of  the  Missouri  compromise  should  be  applied  to  the 
new  acquisitions.  The  extremes  of  public  opinion  were 
expressed  by  the  legislatures  of  Vermont  and  Virginia,  the 
one  declaring  that  the  perpetuation  of  slavery  was  a  viola- 
tion of  the  national  compact,^  the  other  that  any  limita- 

1  Resolutions,  February  20,  1837.     Laws. 

2  Mississippi  Resolutions,  February  25,  1842;  South  Carolina,  Decem- 
ber 17,  1841  ;  Tennessee,  February  7,  1842.     Laws. 

*  Florida  Resolutions,  January  13,  1849;  South  Carolina  Resolutions, 
December  20,  1850.     Laws. 

*  Michigan  Resolutions,  March  11,  1844;  Illinois  Resolutions,  Feb- 
ruary 21,  1843,  February  27,  1845.     Laws. 

^  Massachusetts,  April  23,  1838;  Delaware,  February  25,  1847;  New 
Hampshire,  July  10,  1846,  January  4,  1S49;  New  York,  January  27,  1847, 
January  13,  1848;  Pennsylvania,  January  22,  1847;  Vermont  Acts  and 
Resolutions,  p.  23. 

^  Resolutions,  February  13,  1847,  February  25,  1848.     Laws. 

^  Vermont  Resolution,  1844.     Laws. 


THE   UNITED    STATES  177 

tion  of  slavery  or  the  attempt  to  prevent  the  removal  of 
slave  property  to  a  territory  was  unconstitutional.^ 

The  great  national  issue  could  not  be  mistaken;  the 
struggle  over  slavery  extension  constitutes  the  chief  sub- 
ject of  our  national  activity  from  the  close  of  the  Mexican 
war  to  the  adoption  of  the  thirteenth  amendment.  One 
phase  of  this  question  was  whether  slavery  should  be 
permitted  in  California,  Oregon,  and  the  region  between 
Oregon  and  Iowa. 

On  the  6th  of  August,  1846,  Stephen  A.  Douglas  re- 
ported a  bill  to  the  House  organizing  the  territory  of 
Oregon,  to  which  the  committee  of  the  whole  added  the 
anti-slavery  clause  from  the  ordinance  of  1787;  but  the 
session  came  to  a  close  without  further  action.  When 
Congress  re-assembled,  Douglas  reported  his  bill  again, 
but  the  committee  of  the  whole  voted  down  the  anti- 
slavery  amendment.  Burt,  of  South  Carolina,  then  re- 
newed the  amendment,^  inasmuch,  he  said,  as  the  whole 
territory  lay  north  of  the  Missouri  compromise  line.  His 
purpose  was  plain  enough ;  namely,  to  legalize  slavery 
south  of  the  line,  and  thus  to  settle  a  precedent  for  future 
uses.  Texas  was  already  acquired,  and  the  southern 
legislatures,  as  we  have  seen,  were  demanding  more  slave 
territory.  Burt's  amendment,  however,  was  rejected. 
Congress  again  adjourned  without  organizing  a  territorial 
government  for  Oregon.  When  it  re-assembled,  in  De- 
cember, 1847,  it  was  met  by  Polk's  message  urging  action,^ 
and  on  the  29th  of  May  the  President  sent  a  special  mes- 
sage on  the  subject.  Congress  then  set  seriously  to  work 
to  pass  a  territorial  bill.  The  House  refused  to  strike  out 
the  anti-slavery  provision,  and  passed  the  bill  on  the  2d 
of  August  by  a  sectional  vote :  *  the  North  against  the 
South.  It  went  to  the  Senate  on  the  3d,  where  it  was 
amended ;  and,  on  the  loth,  the  anti-slavery  provision 
was  rejected,  but  the  amendment  proposed  by  Douglas 
was  carried ;  namely,  that  the  provision  affecting  slavery 
in  the  territories,  embodied  in  the  Missouri  compromise, 

1  Resolutions,  March  8,  1847,  January  20,  1849.     Laws, 

2  December  15,  1846. 

8  December  7,  1847  !  Richardson,  vol.  iv,  p.  532. 
*  Yeas,  128  ;  nays,  71. 

12 


178     A    CONSTITUTIONAL   HISTORY    OF 

should  extend  to  the  Pacific  Ocean.  On  the  i  ith  the  House 
rejected  the  Douglas  amendment  and  passed  its  original 
bill/  Thus  the  principle  of  the  ordinance  of  1787  was 
finally  embodied  in  the  organization  of  our  first  territory 
on  the  Pacific. 

The  acquisition  from  Mexico,  commonly  called  the 
California  country,  at  this  time  was  the  only  portion  of 
the  national  domain  remaining  unorganized.  Oregon 
was  no  longer  comprehended  in  the  great  issue  of  the 
hour;  slavery  extension  and  the  organization  of  Oregon 
as  free  soil  were  construed  by  the  slavocrats  as  an  offset 
to  California.  They  demanded  the  right  to  carry  their 
slaves  into  any  part  of  the  new  country,  which  they  in- 
sisted should  be  organized  as  slave  soil.  This  would 
compensate  the  South  for  its  losses  under  the  Missouri 
compromise  and  the  recent  territorial  act.  for  Oregon. 
With  the  California  country  open  to  slavery,  with  a 
stricter  fugitive  slave  act,  and  with  a  complete,  and,  if 
necessary,  enforced  cessation  of  anti-slavery  agitation, 
they  thought  the  country  might  have  peace. 

These  southern  views  were  shared  by  many  people  at  the 
North,  but  others  there  had  quite  opposite  opinions ; 
namely,  that  the  Oregon  question  was  settled,  and  that 
the  principle  which  had  excluded  slavery  from  the  terri- 
tory ought  to  be  applied  to  the  whole  country  south  of  it. 
Under  Mexican  law  this  country  had  been  free  soil,  and 
the  anti-slavery  party  demanded  that  it  should  so  continue 
under  the  laws  of  the  United  States.  Congress  had  the 
right  both  to  exclude  slavery  from  a  territory  and  to  make 
its  permanent  exclusion  a  condition  binding  on  new  states. 
The  new  territories  to  be  organized  in  the  California 
country  should  be  free  soil.  The  fugitive  slave  act  of 
1793  was  sufficiently  odious  without  any  amendment  to 
make  it  more  exacting.  Slavery  and  the  slave  trade  should 
be  forbidden  in  the  District  of  Columbia,  and  California 
should  be  admitted  at  once  as  a  free  state. 

Its  boundaries  were  as  yet  undefined.  Just  at  the  close 
of  the  Mexican  war,  when  the  industrial  conditions  of  the 

1  Act  of  August  14,  1848  ;  Statutes  at  Large,  vol.  ix,  p.  323  ;  29  to  25. 
All  negative  votes  from  slave  states. 


THE    UNITED    STATES  179 

country  were  more  or  less  disturbed,  the  discovery  of  gold 
was  announced  in  California.  The  political  condition  of 
Europe  at  this  time  compelled  a  multitude  of  families  to 
emigrate  to  America,  and  the  veterans  of  the  Mexican  war 
on  their  return  home  met  this  army  of  foreigners  search- 
ing for  homes.  The  news  of  the  discovery  of  gold  turned 
the  faces  of  many  toward  California,  and  of  nearly  all 
toward  the  West.  The  ominous  political  prob'lem  of  the 
extension  of  slavery  into  the  territories  was  for  a  time 
forgotten  under  the  excitement  for  gold. 

By  the  middle  of  the  year  1849,  nearly  two  hundred 
thousand  men  from  the  older  states  and  from  Europe 
were  in  California,  and  its  inhabitants  petitioned  for  its 
admission  into  the  Union.  Congress  ignored  the  request. 
No  state  in  the  Union  had  emerged  so  suddenly  from 
the  wilderness ;  no  population  in  America  was  equally 
composite.  On  the  ist  of  September,  1849,  its  people 
met  in  convention  at  Monterey  ^  and  framed  a  constitution. 
The  economic  necessities  of  the  new  state  excluded  slavery, 
for  if  it  were  permitted  the  slaveholder  would  have  the 
monopoly  of  the  mines ;  and  though  many  of  the  members 
of  the  Monterey  convention  were  from  slave  states,  and 
represented  thousands  of  southern  men  in  California,  yet 
they  fully  recognized  the  inexpediency  of  introducing 
slavery.  But  all  members  of  the  convention  agreed  that 
free  persons  of  color  should  be  excluded,  and  though 
they  did  not  incorporate  a  provision  to  this  end  in  the 
constitution,  they  well  knew  that  public  opinion  would  be 
law   on   the   subject. 

Nearly  half  of  the  California  country  extended  below 
the  Missouri  compromise  line,  therefore  the  demand  of  the 
anti-slavery  party  for  its  admission  as  a  state  alarmed 
the  South.  If  admitted  as  a  free  state,  even  with  the 
smallest  area  which  was  likely  to  be  established,  the  region 
left  open  to  slavery  would  not  balance  the  free  soil  of  the 
North.  The  region  lying  west  and  northwest  of  Texas 
was  an  unbroken  wilderness,  excepting  a  few  old  Spanish 
settlements   and   the   new   city   of   the   saints   which   the 

1  For  an  account  of  the  first  constitution  of  California  see  "The 
Constitutional  History  of  the  American  People,  1776-1850,"  vol.  ii, 
chaps,  x-xii. 


i8o     A    CONSTITUTIONAL    HISTORY    OF 

Mormons  had  built  near  Salt  Lake.  If  the  demands  of 
the  anti-slavery  North  were  to  prevail,  the  slave  soil  of  the 
country  would  extend  no  further  west  than  Texas,  nor 
further  north  than  the  line  of  36°  30'.  Slavery  would 
thus  be  hedged  in  and  in  course  of  ultimate  extinction. 
At  this  time,  1848,  the  thirty  states  of  the  Union  were 
equally  divided  between  free  soil  and  slave  soil,  but  the 
House  of  Representatives  consisted  of  one  hundred  and 
thirty-nine  members  from  free  states  and  ninety-one  from 
slave.  The  population  of  the  free  states  was  above  thir- 
teen millions,^  that  of  the  slave  states  above  nine  mil- 
lions.^ Over  a  million  and  a  half  of  immigrants  had 
arrived  in  the  country  during  the  preceding  eight  years,^ 
and  most  of  them  had  settled  in  the  free  states.  Unaccus- 
tomed to  African  slavery  at  home,  they  avoided  it  on 
coming  to  America,  and  they  knew  also  very  well  that 
they  were  not  welcome  in  any  southern  state  except 
Louisiana.* 

Hostility  to  foreign  immigration  was  characteristic  of 
the  South  at  this  time.  It  was  freely  expressed  on  every 
side,  but  nowhere  more  vigorously  than  in  the  con- 
stitutional conventions.  The  European  immigrant  came 
to  America  to  work  for  a  living  and  naturally  sought 
a  home  where  labor  was  not  under  a  social  stigma. 
Slavery  was  eulogized  by  many  of  its  defenders  at  the 
South  as  its  best  protection  against  the  foreigner.  The 
effect  of  this  hostility  to  free  labor  turned  the  tide  into 
the  free  states  and  developed  and  strengthened  all  their 
institutions   and    industries. 

The  tremendous  significance  of  this  accession  to  the 
number  of  laborers,  who  quickly  imbibed  the  political 
notions  of  the  North,  may  best  be  comprehended  after  an 
examination  of  the  wealth  and  productivity  of  the  North 
at  this  time.  The  evidence  was  the  census  of  1840,  and 
it  was  first  used  to  emphasize  the  contrast  between  free 

1  In  1S50,  13,599,488.  2  jn  1850,  9,663,997. 

8  The  number  from  1841  to  1850  was  1,713,251. 

*  In  Louisiana  the  percentage  of  foreign  born  was  13- 18;  in  1850,  in 
California,  23.55;  '"  Wisconsin,  36.18,  Kentucky,  3.2;  Tennessee,  .56; 
Massachusetts,  16.49;  Pennsylvania.  13.12;  Census  of  1890,  part  i,  Pop- 
ulation, pp.  Ixx-lxxiv. 


THE    UNITED    STATES  i8i 

states  and  slave  states  by  a  member  of  the  Kentucky 
convention  of  1849,  assembled  at  Frankfort  in  October 
of  that  year  to  frame  a  new  constitution  for  the  common- 
wealth.^ A  minority  in  the  convention  had  favored  a 
policy  of  gradual  emancipation  for  the  state,  and  it  was 
as  an  argument  for  the  restriction  of  slavery  that  the 
facts  from  the  census  were  cited  by  a  member  who  rep- 
resented the  counties  of  Knox  and  Harland. 

The  tobacco,  the  rice,  the  cotton,  and  sugar  exported 
from  the  South  to  foreign  countries  in  one  year  amounted 
to  nearly  seventy-five  millions  ($74,866,310),  but  the 
agricultural  products  of  the  state  of  New  York  alone 
were  of  the  value  of  one  hundred  and  eight  millions 
($108,275,281).  The  slave  states  manufactured  articles 
to  the  value  of  forty-two  miUions  ($42,178,184)  ;  the  free 
states,  to  nearly  five  times  this  amount  ($197,658,400). 
The  aggregate  earnings  of  the  slave  states  were  four  hun- 
dred millions  ($403,429,718),  but  of  the  free  states,  more 
than  six  hundred  and  fifty  millions  ($658,705,108).  The 
income  of  the  state  of  New  York  alone  was  greater  by 
over  four  millions  than  the  aggregate  income  of  Alabama, 
Georgia,  Mississippi,  Louisiana,  and  the  Carolinas.  One 
county  in  Massachusetts,  the  county  of  Essex,  with  a 
population  of  only  ninety-five  thousand,  produced  as  much 
as  the  entire  state  of  South  Carolina  with  a  population  of 
nearly  five  hundred  and  fifty  thousand. 

More  striking  was  the  contrast  in  educational  privileges. 
In  the  primary  schools  on  slave  soil,  two  hundred  thou- 
sand (201,085)  pupils  were  in  attendance;  but  in  the  free 
states  such  schools  were  attended  by  more  than  eight  times 
as  many  children  (1,626,028).  The  primary  schools  of 
Ohio  alone  enrolled  nearly  eighteen  thousand  more  pupils 
than  all  the  slave  states.  The  high  schools  of  the  South 
were  attended  by  thirty-six  thousand  (35,935)  scholars; 
those  of  the  North  by  over  four  hundred  and  thirty  thou- 
sand (432,388).  The  attendance  in  the  high  schools  of 
the  smallest  free  state,  Rhode  Island,  exceeded  that  in 
the  largest  slave  state,  Virginia,  by  a  thousand  pupils. 

1  Debates  and  Proceedings  of  the  Convention  for  the  Revision  of  the 
Constitution  of  Kentucky,  1849,  pp.  870,  et  seg. 


i82     A   CONSTITUTIONAL   HISTORY    OF 

The  high  schools  of  Massachusetts  enrolled  nearly  four 
times  as  many  students  as  were  enrolled  in  such  schools 
in  all  the  slave  states.  Taking  the  schools  and  colleges 
of  the  North  all  together,  the  attendance  was  more  than 
two  millions  of  pupils  (2,213,444).  At  the  South  it  was 
less  than  one-third  of  a  million  (301,172).  At  the  South 
one  person  out  of  every  ten  of  the  white  population  could 
neither  read  nor  write;  in  the  free  states  the  proportion 
was  one  to  one  hundred  and  fifty-six. 

The  supporters  of  slavery  in  the  Kentucky  convention 
did  not  deny  the  accuracy  of  the  census,  but  did  deny  the 
truth  of  the  deductions  which  anti-slavery  men  drew 
from  them.^  The  contrast  between  the  North  and  South 
which  the  census  of  1840  disclosed,  they  claimed,  was 
not  due  to  slavery.  They  preferred  an  agricultural  to 
a  manufacturing  condition ;  they  did  not  want  to  live  the 
life  of  the  North ;  they  were  satisfied  with  southern  polit- 
ical economy,  and  they  demanded  that  they  should  be 
permitted  to  establish  it  in  any  territory  in  the  United 
States.  If  the  relative  strength  of  the  two  sections  of  the 
country  was  accurately  shown  by  the  census  of  1840, — and 
nearly  nine  years  had  now  passed,  —  and  if  the  demands 
of  the  North  and  those  of  the  South  as  to  the  extension 
of  slavery  could  not  now  in  some  way  be  compromised, 
the  days  of  the  Union  seemed  numbered.  In  case  a  com- 
promise was  made,  it  must,  in  order  to  prove  stable,  be 
founded  upon  a  true  economic  basis. 

When  Congress  met  in  1849,  it  was  commonly  under- 
stood that  a  compromise  of  some  kind  would  be  attempted. 
The  last  serious  attempt  at  excluding  slavery  from  the 
California  country  had  failed.  It  had  been  made  by  David 
Wilmot,  of  Pennsylvania,  on  the  8th  of  August,  1846, 
and  had  been  offered  as  a  proviso  to  a  bill  appropriating 
$2,000,000  to  be  expended  in  the  peace  negotiations  with 
Mexico.^  The  proviso  excluded  slavery  forever  from  all 
soil  that  might  be  acquired  and  was  carried  in  the  House, 
in  committee  of  the  whole,  by  a  vote  of  eighty-three  to 
sixty-four.     It  would  probably  also  have  carried  in  the 

1  Kentucky  Debates,  1849,  p.  877. 

'  See  Polk's  Message,  August  8,  1846;  Richardson,  vol.  iv,  p.  459. 


THE   UNITED    STATES  183 

Senate  had  not  John  Davis,  of  Massachusetts,  persisted 
in  delivering  an  untimely  speech,  in  the  midst  of  which 
Congress  adjourned,  and  the  opportunity  for  carrying  the 
proviso  was  forever  gone.  All  efforts  to  revive  it  in  the 
next  Congress  failed.  The  pro-slavery  men  considered 
it  a  plain  violation  of  the  Constitution,  and  the  Whigs 
as  a  party  inclined  to  the  same  view.  In  place  of  so 
radical  a  measure,  the  pro-slavery  party,  of  whom  Cal- 
houn was  the  leader,  demanded  that  the  Constitution  and 
laws  of  the  United  States  applicable  to  a  territory  should 
be  extended  over  the  new  acquisition.^  This  would  have 
made  the  new  region  slave  soil. 

On  the  29th  of  January,  1850,  Henry  Clay  came  for- 
ward in  the  Senate  with  eight  resolutions  which,  he  said, 
covered  all  points  of  the  question,  and  would  amicably 
adjust  upon  a  fair  and  equitable  basis  all  the  controversies 
ajising  out  of  the  institution  of  slavery.  These  resolu- 
tions were,  in  brief :  to  admit  California  as  a  free  state ; 
to  organize  the  territories  of  Utah  and  New  Mexico  with- 
out reference  to  slavery ;  to  include  a  portion  of  the  state 
of  Texas  within  the  boundaries  of  New  Mexico,  and  in 
compensation  to  assume  the  public  debt  of  Texas  con- 
tracted before  its  annexation ;  to  abolish  the  slave  trade, 
but  not  slavery,  within  the  District  of  Columbia ;  to  enact 
a  more  effective  fugitive  slave  law,  but  to  leave  the  trade 
in  slaves  between  the  slave-holding  states  wholly  to  their 
control.^  Clay  supported  his  resolutions  in  a  speech 
which  he  was  not  unwilling  should  be  considered  the 
greatest  of  his  life.  To  this  ambitious  scheme  of  com- 
promise the  support  of  Webster  and  some  of  the  lesser 
whig  leaders  was  first  secured.  Both  Houses  were 
willing  to  concede  its  principles,  and  it  seemed  destined 
to  speedy  adoption. 

The  resolutions  were  reported  in  one  bill  in  May,  but 
were  no  sooner  reported  than  the  elements  of  discord 
in  the  bill  were  recognized  as  fatal  to  its  passage,  and 
after  a  debate  running  through  the  summer  session,  its 

^  Calhoun's  Works,  vol.  iv,  pp.  346,  498. 
*  Benton's  Debates,  vol.  xvi,  p.  386. 


i84     A    CONSTITUTIONAL    HISTORY    OF 

propositions  were  taken  up  and  passed  separately.^  Every 
prominent  member  of  Congress  spoke  on  the  resolutions, 
but  their  constitutional  aspects  were  best  interpreted  in 
three  great  speeches,  —  those  of  Calhoun,^  Webster,^  and 
Seward.* 

Calhoun  began  by  saying  that  the  continued  agitation 
of  the  subject  of  slavery  would  end  in  disunion.  The 
United  States  was  a  slave-holding  power,  its  Constitution 
a  pro-slavery  instrument.  It  recognized  the  right  of 
property  in  slaves,  and  on  that  right  lay  the  foundation  of 
the  civil  organization  of  the  South.  Every  denial  of  that 
right,  therefore,  tended  to  destroy  the  very  purpose  for 
which  the  Union  had  been  organized.  The  South  had 
an  equal  right  with  the  North  to  all  territories.  To 
deny  that  equal  right  could  mean  nothing  less  than  dis- 
union. Hitherto  the  balance  of  power  had  been  maintained 
through  the  admission  of  an  equal  number  of  free  and 
slave  states,  but  now  by  the  admission  of  California  that 
equilibrium  had  been  destroyed.  So  aggressive  had  been 
the  anti-slavery  North,  that  the  South  was  excluded  from 
all  but  about  one-fourth  of  the  vast  area  which  had  been 
acquired  since  the  formation  of  the  compact  between  the 
states.  The  policy  of  tariff  protection  had  enriched  the 
North  at  the  expense  of  the  South,  and  had  attracted  immi- 
gration from  all  quarters  of  the  world.  For  these  reasons 
the  North  had  acquired  a  preponderance  in  every  depart- 
ment of  the  government.  The  ordinances  of  1787  and 
the  Missouri  compromise  had  excluded  the  South  from 
its  portion  of  the  great  West ;  otherwise  the  contrasts 
shown  by  the  census  of  1840  could  never  have  been 
possible.  By  concentrating  all  the  power  of  the  federal 
system  in  itself,  the  government  of  the  United  States  had 
become  entirely  changed  from  its  original  character.  It 
now  claimed  the  right  to  decide  in  tlie  last  resort  as  to 
the  extent  of  its  powers,  wholly  ignoring  the  sovereign 
rights  of  the  states.     To  all  this  discrimination  against 

1  The  Texas  bill,  the  territory  of  New  Mexico,  the  admission  of  Cali- 
fornia, the  Utah  bill,  September  9th  ;  the  fugitive  slave  law,  Septem- 
ber i6th  ;  the  slave  trade  in  the  District  of  Columbia,  September  20, 
1850;  Statutes  at  Large,  vol.  ix,  pp.  446-467. 

*  March  4,  1850.  ^  March  7.  1850.  *  March  11,  1850. 


THE   UNITED    STATES  185 

the  South  was  to  be  added  the  hostile  sentiment  of  pow- 
erful organizations  at  the  North  which  were  demanding 
the  abolition  of  slavery.  Their  demands  since  1835  ^'^^^^ 
become  more  and  more  exacting,  until  they  practically 
dominated  the  general  government.  The  cords  which 
held  the  two  sections  of  the  Union  together  were  snap- 
ping one  by  one.  The  Constitution  had  been  violated ; 
the  Union  was  in  peril  of  dissolution,  and  Clay's  com- 
promise could  not  save  it.  Nothing  could  save  it  but 
a  return  to  the  original  meaning  of  the  Constitution  as  a 
compact  between  sovereign  states,  vinder  which  all  pos- 
sessed equal  rights ;  therefore  Calhoun  opposed  the  com- 
promise.^ He  spoke  for  slavocracy  and  proclaimed  its 
ultimatum. 

Three  days  later  Webster  replied  in  his  famous  7th 
of  March  speech,^  an  appeal  for  the  preservation  of  the 
Union.  He  sympathized  with  the  South,  fully  agreeing 
that  it  had  many  and  serious  grievances  against  the  North, 
chief  of  which  were  northern  violations  of  the  fugitive 
slave  act.  The  institution  of  slavery  was  a  recognized 
part  of  the  constitutional  organization  of  the  country  and 
should  be  respected.  He  admitted  that  the  Mexican  war 
had  been  prosecuted  for  the  sole  purpose  of  adding  terri- 
tory over  which  slavery  should  be  extended,  and  as  the 
acquisition  was  of  a  region  which  lay  in  a  warm  climate, 
the  South  naturally  expected  that  it  would  become  slave 
soil.  Whether  the  region  should  be  free  or  slave,  he 
believed,  was  fixed  by  an  irrevocable  law  beyond  the  power 
of  Congress.  Nature  herself  would  regulate  the  extension 
of  slavery,  and  against  her  laws  he  believed  it  folly  to  con- 
tend ;  therefore  the  fate  of  slavery  in  the  California  coun- 
try should  be  left  to  the  laws  of  climate.  He  did  not  fear 
that  slavery  could  be  maintained  against  natural  law. 

Though  opposed  to  slavery  extension,  he  considered  the 
United  States  pledged  to  create  just  such  states  out  of 
Texas  as  its  people  might  demand  respecting  slavery. 
His  interpretation  of  the  law  of  nature  in  the  California 
country  seems  now  quixotic,  but  he  believed  that  Califor- 

1  Calhoun's  Speech  in  Johnston's  American  Orations,  p.  246. 

2  Works,  vol.  V,  p.  324. 


i86     A    CONSTITUTIONAL   HISTORY    OF 

nia  and  New  Mexico  were  destined  to  be  free  soil  "  by 
the  arrangement  of  things  ordained  by  the  Power  above 
us."  On  the  principle  of  the  Wilmot  proviso  he  cast 
every  aspersion.  He  believed  that  Clay's  compromise 
plainly  contained  a  working  principle  which  would  pre- 
serve the  Union,  and  for  this  reason  he  supported  it. 
But  the  burden  of  his  speech  was  a  defence  of  the  South 
in  its  complaints  against  the  North. 

While  the  debate  was  running  on  in  Congress,  the  state 
legislatures  were  passing  elaborate  resolutions.  The 
northern,  favoring  the  admission  of  California  as  a  free 
state,  demanded  the  exclusion  of  slavery  from  the  new 
territories,  and  the  abolition  of  the  slave  trade  in  the 
District  of  Columbia ;  the  southern,  emphasizing  state 
sovereignty,  denied  the  power  of  Congress  to  legislate 
as  to  slavery ;  attacked  the  principle  of  the  Wilmot  pro- 
viso, and  in  substance  supported  Calhoun's  opinion  of 
the  compromise.^  The  South  was  calling  for  a  conven- 
tion of  slave-holding  states  to  consider  the  defence  of 
its  rights,  and  Calhoun  was  secretly  arranging  that  one 
should  assemble  at  Nashville  early  in  June.  Clay  and 
Webster  had  spoken  for  the  compromise,  Calhoun  had 
spoken  against  it,  but  the  faces  of  all  three  were  set 
toward  the  past. 

The  great  speech  against  the  compromise  was  Seward's, 
delivered  four  days  after  Webster's.  Seward  realized 
that  the  period  for  compromises  had  passed.  The  title 
which  he  gave  to  his  speech,  "  California,  the  Union,  and 
Freedom,"  indicated  its  scope  and  purpose.  He  found 
little  in  the  proposed  compromise  that  he  could  approve. 
California,  he  said,  was  already  a  state,  and  he  answered 
every  objection  which  had  been  made  to  its  admission. 
Looking  into  the  future,  he  foretold  with  remarkable 
accuracy  the  growth  of  the  nation  for  the  next  half 
century.  It  would  increase  from  twenty  to  eighty  mil- 
lions, and  the  faces  of  all  would  be  set  toward  the  West. 
There   lay   the    future   of   the   nation.     The   balance   of 

^  For  a  resume  of  these  resolutions,  see  "  The  Constitutional  History 
of  the  American  People,  1776-1850,"  vol.  i,  pp.  337-340.  Typical  resolu- 
tions with  those  of  Mississippi,  March  5  and  6,  1850;  of  New  York,  Jan- 
uary 16,  1850. 


THE   UNITED    STATES  187 

political  power  would  be  in  its  keeping.  The  organization 
of  civil  government  in  the  California  country  would, 
therefore,  affect  the  destiny  of  millions  yet  unborn. 

The  speeches  of  Webster  and  Clay  were  cast  in  the 
same  political  mould,  but  those  by  Calhoun  and  Seward 
had  nothing  in  common.  Calhoun  spoke  of  the  compact, 
of  state  sovereignty,  and  of  slavery  as  a  permanent 
national  institution.  Seward  spoke  of  the  nation  and 
universal  freedom,  and  of  the  permanent  restriction  of 
slavery  in  the  slave-holding  states.  Congress,  he  said, 
had  power  to  exclude  it  from  the  territories,  and  in  so 
doing  would  carry  out  the  principles  of  the  founders  of 
the  government.  New  states  would  cling  to  a  closer 
alliance  than  would  the  older  ones,  therefore  Congress 
should  make  the  new  states  free.  Calhoun  had  appealed 
to  the  Constitution  as  the  final  and  only  test  of  legislation, 
but  Seward  boldly  announced  that  there  was  a  law  higher 
than  the  Constitution  which  regulated  the  authority  of  the 
American  people  over  their  domain  and  devoted  it  to  the 
noblest  purpose.  That  domain,  constituting  no  inconsid- 
erable portion  of  the  common  heritage  of  mankind,  had 
been  bestowed  upon  them  by  the  Creator  of  the  universe. 
They  were  stewards,  and  must  so  discharge  their  trust 
as  to  secure  happiness  in  the  highest  attainable  degree, 
which  was  to  be  won  not  by  the  extension  of  slavery 
but  by  the  extension  of  freedom  throughout  the  national 
domain. 

Is  it  strange  that  when  Seward  appealed  to  the  "  higher 
law,"  Calhoun  declared  that  a  man  who  could  utter  such 
a  doctrine  was  unfit  to  be  a  member  of  the  Senate? 

The  debate  on  the  compromise  of  1850  brought  to 
light  how  deeply  seated  among  the  different  sections  of 
the  American  people  were  the  doctrines  of  1798,  the  prin- 
ciples of  the  Missouri  compromise  of  1820,  and  the  antag- 
onistic principles  discussed  at  the  time  of  the  South 
Carolina  ordinance  of  nullification  of  1832.  The  debate 
brought  plainly  to  view  the  seam  running  through  our 
civil  institutions. 

The  thirty  years  following  the  Missouri  compromise 
form  a  period  whose  political  agitations  largely  grew  out 
of  that  compromise.     Slavery  had  become  an  economic 


i88     A    CONSTITUTIONAL    HISTORY    OF 

factor  in  America,  and  during  these  thirty  years  slave 
labor  was  profitable  —  as  measured  by  monetary  values. 
The  great  migration  into  the  West  began,  and  the  frontier 
was  a  movable  line.  Had  slavery  been  unproductive,  as 
production  was  measured  by  the  standards  of  that  time, 
gradual  emancipation  must  slowly  have  undermined 
the  institution.  But  America  was  still  in  the  agricultural 
stage,  and  agricultural  methods  were  rude.  The  virgin 
soil  had  not  yet  been  exhausted  by  slave  labor;  there 
seemed  to  be  an  endless  supply  of  new  soil  in  the  West, 
and  slavery,  as  most  men  thought,  was  a  permanent  and 
inseparable  element  in  the  economic  life  of  the  country. 

Because  of  the  prevailing  notions  of  labor  and  economy, 
slavery  found  aggressive  supporters.  The  Constitution 
and  the  laws  were  evoked  because  the  interests  of  slavery 
were  the  interests  of  property.  The  human  element  was 
wholly  subordinated  to  the  jus  rerum.  Sifted  of  verbiage 
and  legal  technicalities,  the  numberless  speeches,  in  and 
out  of  legislative  halls,  in  defence  of  slavery,  were  merely 
a  defence  of  the  rights  of  property.  At  no  time  preceding 
this  period  was  there,  anywhere  in  the  world,  so  ardent 
a  defence  of  slavery  by  civilized  men  as  was  heard  during 
these  thirty  years  in  America.  And  the  paradox  seems 
inexplicable  that  statesmen  of  the  acumen  of  Calhoun 
and  Webster  should  spend  the  best  years  of  their  lives  in 
defence  of  slavery.  Unquestionably  they  had  the  law  of 
the  land  on  their  side.  Ours  was  a  slave-holding  republic : 
a  political  aggregation  in  itself  a  paradox. 

The  long  debate  of  slavery,  from  the  Missouri  compro- 
mise to  the  compromise  of  1850,  came,  as  it  may  be  said, 
naturally  in  the  evolution  of  government  in  America. 
Every  period  of  prolonged,  serious,  and  critical  debate 
precedes,  in  every  country,  a  political  revolution.  Viewed 
as  a  question  in  government,  slavery  was  bound  to  divide 
the  country,  economically  and  politically,  and  this  the 
statesmen  of  the  period  clearly  foresaw.  The  advocates 
and  the  opponents  of  slavery  agreed  touching  one  thing, 
and  only  one  thing,  —  that  the  agitation  of  the  issues  of 
slavery  meant  disunion  ;  yet  everybody  was  agitated,  more 
or  less,  over  slavery. 

The  sovereignty  of  the  federal  government  was  involved 


THE   UNITED    STATES  189 

in  the  debate,  as  it  was  later  involved  in  the  consequences 
of  the  agitation. 

A  compromise  opened  and  a  compromise  closed  the 
period.  But  the  startling  fact  is  the  indifference  of  events 
to  the  plans  of  the  debaters  and  the  compromises  of  the 
law-makers.  A  mighty  economic  change  was  transform- 
ing the  country.  Because  America  was  the  land  in  which 
labor  must  be  honorable,  free,  and  productive,  slavery  was 
doomed  to  extinction.  Slave  labor  and  free  labor  have 
never  gone  on  side  by  side  peaceably.  Both  laborers  must 
be  slaves  or  both  must  be  free  men.  The  law  which  was 
annulling  all  other  laws  in  America  was  that  law  of 
economy  which  proclaims  human  labor  free. 

We  must  not  be  misled  by  the  apparent  and  overlook 
the  real  forces  which  were  shaping  the  history  of  America 
during  these  years.  It  was  the  open,  untilled  West,  the 
accessible  mines,  the  economic  opportunity  in  America, 
which  determined  its  political  because  it  determined 
its  economic  history.  Nullification,  extension  of  slavery, 
state  sovereignty,  were  passing  phases  in  the  evolution 
of  popular  government  in  America.  Removed  from  us 
as  the  period  is  by  scarcely  two  generations,  it  seems  as 
distant  as  the  revolution.  A  false  economy  _  prevailed, 
and  consequently  a  false  conception  of  political  ideals. 
Statesmen  might  deliver  7th  of  March  speeches,  but  the 
fate  of  the  country  was  in  the  hands  of  the  plain  people, 
the  toilers  on  the  farms.  The  rights  of  free  labor  were 
yet  to  correct  the  faults  in  the  Constitution. 


190     A    CONSTITUTIONAL   HISTORY    OF 


CHAPTER   IX 

SLAVERY  EXTENSION 

At  the  time  the  last  of  the  compromise  acts  of  1850 
was  passed,  it  is  doubtful  whether  there  were  a  dozen 
white  families  living  in  the  wilderness  between  the  present 
boundaries  of  Minnesota,  Iowa,  Missouri,  and  the  Mormon 
settlements  at  Salt  Lake ;  but  within  two  years  immigra- 
tion set  in  toward  this  region,  and  settlements  were  made 
along  the  Kansas  and  Nebraska  rivers.  At  the  session 
of  Congress  of  1851-1852,  several  petitions  were  presented 
for  the  organization  of  a  territory  west  of  Iowa,  but  it 
was  not  until  the  2d  of  February,  1853,  that  a  bill  to 
organize  a  territory  under  the  name  of  Nebraska  was 
reported.  It  passed  the  House  on  the  loth,  was  referred 
to  the  committee  on  territories  in  the  Senate  on  the  follow- 
ing day,  and  was  reported  without  amendment  by  Stephen 
A.  Douglas  on  the  17th;  but  the  Senate  gave  the  subject 
no  further  attention  during  the  session.  During  the  brief 
debate,  the  purpose  of  the  pro-slavery  party  was  disclosed 
by  Senator  Atchison,  of  Missouri,  —  namely,  to  oppose 
the  organization  of  the  territory  unless  the  restrictions  of 
slavery  by  the  Missouri  compromise  were  removed. 

President  Pierce  in  his  inaugural  ^  pronounced  the  com- 
promise measures  of  1850  strictly  constitutional,  and 
declared  himself  bound  to  carry  them  into  effect ;  but  this 
policy  could  not  be  carried  out  if  the  purpose  of  Atchison 
and  his  supporters  was  to  prevail.  Much  was  said  in  the 
thirty-third  Congress,  which  assembled  December  5,  1853, 
of  the  prospective  territory  of  Nebraska,  and  a  bill  for  its 
organization  was  reported  by  Senator  Douglas  on  the  4th 
of  January,  1854.     The  accompanying  report  of  the  com- 

1  March  4,  1853;  Richardson,  vol.  v,  p.  195. 


THE   UNITED    STATES  191 

mittee  on  territories  reaffirmed  the  compromise  measures 
of  1850,  and  rested  the  bill  upon  three  propositions :  ^ 
that  the  question  of  slavery  in  the  territories  and  in  new 
states  formed  from  them  should  be  left  to  the  decision 
of  the  people  residing  in  them ;  that  all  cases  involving 
the  question  of  personal  freedom  —  that  is,  the  title  to 
slaves  —  should  be  referred  to  the  local  judicial  tribunal, 
with  right  of  appeal  to  the  supreme  court  of  the  United 
States ;  and  that  the  fugitive  slave  act  should  be  faithfully 
executed. 

Douglas  proposed,  as  an  amendment  to  the  bill,  that 
the  Missouri  restriction  on  slavery  should  be  declared 
inoperative  and  void ;  but  this  was  lost.  However,  as 
a  compensation,  the  Senate  struck  out  the  passage  in  the 
bill  that  the  Missouri  restriction  was  superseded  by  the 
principle  of  the  compromise  of  1850;  but  this  did  not 
satisfy  Mr.  Douglas,  who,  on  the  15th  of  February,  suc- 
ceeded in  substituting  his  amendment,  that  the  Missouri 
restriction  was  inconsistent  with  the  compromise  of  1850 
and,  therefore,  void ;  "  it  being  the  true  purpose  of  the 
new  territorial  bill  neither  to  legislate  slavery  into  a  ter- 
ritory or  state,  nor  to  exclude  it,  but  to  leave  the  people 
of  either  free  to  regulate  their  domestic  institutions  in 
their  own  way,  subject  only  to  the  Constitution  of  the 
United  States."  Senator  Chase,  of  Ohio,  wished  to  amend 
further  by  adding  that  the  people  of  a  territory,  if  they 
saw  fit,  might  prohibit  slavery,  but  this  was  rejected. 
Instead  of  this  plain  provision  the  Senate  added  a  proviso 
that  the  bill  should  not  be  construed  as  putting  in  force 
any  law  that  existed  before  the  6th  of  March,  1820,  either 
establishing  or  abolishing  slavery.  At  Senator  Clayton's 
suggestion,  immigrants  from  Europe  who  had  declared 
their  intention  to  become  citizens  should  not  be  allowed 
to  vote  unless  otherwise  qualified.  Chase  wished  to 
amend  the  bill  further  so  as  to  allow  the  people  of  a 
territory  to  choose  their  own  governor,  but  this  application 
of  "  squatter  sovereignty  "  was  defeated.  The  principal 
speech  against  the  bill  was  delivered  by  Senator  Seward, 
who  detected   in  the  measure  a   device   for  establishing 

^  Senate  reports,  33d  Congress,  First  Session,  vol.  i,  No.  XV. 


192     A    CONSTITUTIONAL   HISTORY    OF 

slavery  in  Nebraska;  but  his  objections  were  not  sustained 
and  the  bill  passed  the  Senate  as  a  pro-slavery  measure.^ 

In  the  House  a  separate  territorial  bill  for  Nebraska  had 
been  introduced  on  the  22d  of  December,  but  on  the  31st 
of  January,  1854,  the  committee  on  territories  reported  a 
bill  to  organize  both  Nebraska  and  Kansas  in  one  act. 
It  was  substantially  the  Douglas  bill.  An  ineffective 
attempt  was  made  to  incorporate  the  doctrine  of  "  squatter 
sovereignty  "  in  a  provision  authorizing  the  inhabitants 
to  determine  the  question  of  slavery  for  themselves.  On 
the  2d  of  May  the  bill  was  finally  passed,^  the  majority 
in  its  favor  being  from  slave  states.  The  Senate  took  it 
up  practically  as  a  substitute  for  its  own  measure.  The 
bill  passed  on  the  24th  and  was  approved  by  the  President.^ 
It  extended  the  fugitive  slave  act  over  the  territory; 
declared  the  Missouri  compromise  inconsistent  with  the 
principle  of  non-intervention  by  Congress  with  slavery 
in  the  states  and  territories  as  recognized  by  the  com- 
promise of  1850,  and  left  the  question  of  slavery  to  be 
settled  by  the  inhabitants  in  their  own  way. 

The  bill  was  arraigned  in  an  open  letter  by  the  Inde- 
pendent Democrats  *  as  a  gross  violation  of  the  recent 
compromise  and  of  the  earlier  one  of  1820.  The  signers 
of  the  expostulation  held  that  the  constitutionality  of 
slavery  restriction  embodied  in  the  Missouri  compromise 
was  established  not  only  by  President  Monroe  and  his 
cabinet,  but  also  by  the  acquiescence  of  the  American 
people  for  nearly  thirty-five  years.  The  consequence  of 
the  Kansas-Nebraska  act  could  not  be  measured.  It 
re-opened  the  whole  question  of  slavery  restriction;  its 
prospective  economic  effects  were  more  alarming.  Its 
first  operation,  as  it  permitted  slavery  in  Nebraska,  would 
cut  off  the  free  states  of  the  Pacific  from  those  of  the 
Atlantic.  It  would  defraud  untold  millions  of  Americans 
and  of  immigrants  from  securing  homes  in  free  soil. 
Free  men  would  not  work  by  the  side  of  slaves.     The 

1  March  3,  1854.  2  113  to  100. 

*  May  30,  1854;  Statutes  at  Large,  vol.  x,  p.  277. 

*  Signed  by  S.  P.  Chase,  ('harles  Sumner,  J.  R.  Giddings,  Edward 
Wade,  (".errett  Smith,  Alexander  DeWitt;  January  19,  1854;  Congres- 
sional Globe,  33d  Congress,  First  Session,  part  i,  pp.  281-282. 


THE    UNITED    STATES  193 

vast  territory  to  be  organized  would  extend  the  domain 
of  slavery  northward ;  it  would  imperil  the  Union. 

The  "  squatter-sovereignty  "  act  of  1854  indicated  the 
slight  respect  which  the  democratic  party  had  for  any 
interpretation  of  the  Constitution,  or  any  law  which  tended 
to  restrict  slavery.  In  vain  did  Senator  Chase,  of  Ohio, 
attempt  to  amend  the  act  by  adding  that  the  people  of 
the  territory  might  prohibit  slavery  through  their  repre- 
sentatives ;  the  dominant  party  refused  any  modification 
of  the  new  act  which  might  be  construed  as  either  estab- 
lishing or  abolishing  slavery :  that  should  be  left  with  the 
people  of  the  territory.  Fair  as  this  seemed  on  its  face, 
the  act  of  1854  was  practically  a  pro-slavery  measure. 
The  revelation  of  its  true  character  depended  upon  its 
execution,  and  that  was  in  the  hands  of  pro-slavery  men. 
The  immediate  effect  of  the  act  was  to  stimulate  immi- 
gration to  Kansas.  Two  streams  of  population  poured 
in ;  one  from  the  North,  hostile  to  slavery ;  the  other  from 
the  South,  determined  to  establish  it  in  the  new  region. 
Each  party  attempted  to  secure  a  constitution  for  Kansas, 
the  one  anti-slavery,  the  other  pro-slavery.  The  immediate 
result  was  civil  war  in  Kansas  for  nearly  two  years.  The 
Topeka  constitution,^  which  made  the  territory  free  soil, 
and  the  government  instituted  under  this  constitution, 
were  not  recognized  by  the  President.  The  Lecompton 
constitution,^  which  was  pro-slavery,  was  so  ingeniously 
submitted  to  the  people  that  it  was  bound  to  be  adopted 
whether  free  state  men  voted  for  or  against  it.  Like  the 
constitution  of  Kentucky  of  1849,  it  declared  the  right  of 
property  (meaning  particularly  slave  property)  to  be 
above  and  higher  than  any  constitutional  sanction,  but 
went  further  than  the  Kentucky  or  any  other  state  con- 
stitution, and  asserted  that  the  right  of  an  owner  of  slaves 
to  them  and  their  increase  was  as  inviolable  as  the  right 
of  the  owner  of  any  property  whatever.  This  declaration 
was  the  last  of  its  kind ;  never  again  was  a  pro-slavery 
clause  to  be  incorporated  into  an  American  constitution. 
The  Lecompton  constitution  was  also  the  last  to  define 
a   state   as   "  free,    independent,   and   sovereign."      Free 

1  December  15,  1855.  2  December  21,  1857. 

13 


194     A    CONSTITUTIONAL   HISTORY    OF 

negroes  were  forbidden  to  enter  the  state.  The  ratifica- 
tion of  this  constitution  was  wholly  fraudulent,  for  the 
vote  stood  twenty-four  for  the  constitution,  with  slavery ; 
one  hundred  and  thirty-eight,  without  slavery ;  and  ten 
thousand  two  hundred  and  twenty-six,  against  the  consti- 
tution in  any  form.^ 

President  Buchanan  sent  the  constitution  to  Congress 
on  the  2d  of  February,  1858,^  with  a  special  message 
declaring  that  it  had  been  made  according  to  every  prin- 
ciple of  constitutional  law,  and  at  the  same  time  pro- 
nouncing the  Topeka  constitution  and  the  legislature 
existing  under  it  a  revolutionary  government.  This  was 
not  the  President's  first  praise  of  the  Lecompton  instru- 
ment, for  he  had  dilated  on  its  excellencies  in  his  annual 
message  ^  of  the  preceding  year.  His  support  of  it  was 
due  to  his  conviction  that  it  conformed  to  just  principles 
of  government.  What  these  principles  were  was  made 
known  two  days  after  the  inauguration  in  the  decision  of 
the  supreme  court  in  the  Dred  Scott  case,  an  impending 
dicision  to  which  the  President  referred  in  his  inaugural. 
Whether  he  had  knowledge  of  the  forthcoming  decision 
is  not  known. 

Scott  was  a  slave  of  one  Dr.  Emerson,  a  citizen  of 
Missouri,  who,  in  the  course  of  his  military  duties  had 
removed  to  Rock  Island  in  Illinois,  and  later  to  Fort 
Snelling,  which  at  the  time  was  in  the  territory  of  Wis- 
consin. While  at  Fort  SnelHng,  Scott,  with  his  master's 
consent,  had  married  a  negro  woman  who  also  had  been 
brought  from  Missouri.  Two  children  were  born  to 
them  in  Wisconsin.  In  1850  Emerson  was  again  living 
in  Missouri,  whither  he  had  brought  Scott  and  his  family. 
The  negro  brought  suit  for  the  freedom  of  himself  and 
family  on  the  ground  that  they  had  lived  in  Illinois  and 
Wisconsin,  which  were  free  states.  The  St.  Louis  local 
court  sustained  his  suit,  deciding  that  he  and  his  family 
were  free  persons.*  Emerson  appealed  the  case  to  the 
state  supreme  court,  which  promptly  reversed  the  decision. 

1  It  was  claimed  that  it  was  ratified  by  6,226  votes  to  589. 

2  Richardson,  vol.  v,  p.  471. 

8  December  8,  1857;  Id.  pp.  452-454. 
*  15  Missouri,  581. 


THE   UNITED    STATES  195 

Not  long  after,  Scott  and  his  family  were  sold  to  one 
Sandford,  a  citizen  of  New  York,  and  Scott  again  brought 
suit  for  his  freedom  ;  this  time  in  the  United  States  circuit 
court  at  St.  Louis,  which  pronounced  them  the  property 
of  Sandford.^  They  appealed  the  case  to  the  supreme 
court  of  the  United  States,  before  which  the  case  was 
twice  argued  ;  first,  in  the  spring  of  1856,  when,  on  account 
of  the  approaching  presidential  election,  the  opinion  of 
the  court  was  withheld ;  and  the  second  time  in  December, 
1856,  when  the  issue  was  enlarged  to  include  the  question 
whether  the  Constitution  empowered  Congress  to  exclude 
slavery  from  the  territories.  This  involved  the  constitu- 
tionality of  the  ordinance  of  1787,  of  the  Missouri  com- 
promise of  1820,  and  of  all  acts  resting  upon  them. 

The  court  consisted  of  nine  judges,  five  of  whom  were 
from  slave,  and  four  from  free,  states.  Seven  were  Dem- 
ocrats. The  majority  of  them  agreed  that  the  decision 
of  the  Missouri  circuit  court  should  be  sustained ;  there- 
fore Scott  and  his  family  were  slaves.  But  not  content 
to  leave  the  matter  here,  the  court  undertook  to  give  peace 
to  the  country  and  to  settle  the  critical  question  in  dispute. 
The  chief-justice,  Taney,  determined  to  give  an  opinion 
covering  all  the  issues  in  the  case.  Each  associate  justice 
also  wrote  an  opinion.  Seven  of  them  -  agreed  with 
Taney,  though  for  different  reasons,  that  the  court  had 
no  jurisdiction  in  the  case,  but  Curtis  and  McLean  dis- 
sented wholly  from  him.  Slaves,  the  court  held,  were 
property,  and  had  never  been  citizens  in  contemplation 
of  law  since  the  organization  of  the  general  government ; 
therefore  all  laws  prohibiting  slavery  were  unconstitu- 
tional. The  mass  of  legislation  upon  which  the  govern- 
ments of  the  old  Northwest  rested,  that  is,  the  ordinance 
of  1787;  the  Missouri  compromise;  the  Oregon  bill;  the 
constitutions  of  the  six  states  west  of  Pennsylvania,'^  in 
so  far  as  they  forbade  slavery ;  and  all  laws  in  restriction 
of  it  made  under  them,  and  all  territorial  acts  in  restraint 
of  slavery,  were  unconstitutional.  Congress  could  pro- 
tect or  extend  slavery,  but  could  not  limit  or  prohibit  it. 

1  May,  1854. 

2  Campbell,  Catron,  Daniel,  Grier,  Nelson,  Wayne,  Clifford. 
*  Ohio,  Indiana,  Illinois,  Michigan,  Wisconsin,  Iowa. 


196     A    CONSTITUTIONAL    HISTORY    OF 

The  states  were  sovereign  and  the  United  States  were 
not  for  all  purposes  a  nation. 

In  a  prolix  opinion  which  reviewed  the  history  of  the 
legal  status  of  the  negro,  the  chief-justice  excluded  the 
African  race  from  all  participation  in  the  privileges  of 
free   men/ 

Mr.  Justice  Curtis  delivered  a  dissenting  opinion.  In 
five  of  the  thirteen  original  states,  said  he,  persons  of  color 
had  been  electors  and  had  participated  in  ordaining  and 
establishing  the  Constitution.  It  had  not  been  made  ex- 
clusively by  the  white  race  nor  for  them.  They  were 
entitled  to  all  the  rights  and  privileges  of  free  men ;  with 
the  substance  of  which  opinion  McLean  agreed.  No 
decision  of  the  court  throughout  its  history  has  provoked 
so  widespread  public  interest.  The  victory  was  for  state 
sovereignty  and  slavery,  and  the  democratic  party  and 
all  friends  of  slavery  accepted  it  as  a  final  settlement  of 
the  whole  matter.  The  President  applied  it  in  his  inter- 
pretation of  afifairs  in  Kansas  and  Nebraska.  He  knew, 
as  did  thousands  of  other  American  citizens,  that  twenty- 
seven  of  the  thirty-one  state  constitutions  then  in  force  de- 
nied the  right  of  citizenship  to  free  persons  of  color.  The 
anti-slavery  party  promptly  pronounced  the  court's  dis- 
cussion of  slavery  extension  mere  obiter  dicta,  and  that 
in  attempting  to  settle  the  slavery  question  the  court  was 
interfering  in  political  matters. 

Public  opinion  in  the  North  was  well  exemplified  in  the 
utterances  of  Senator  Douglas  and  Mr.  Lincoln.  Douglas, 
devoted  to  what  he  called  "  the  great  principle  of  popular 
sovereignty  and  self-government,"  boldly  claimed  that  he 
found  that  the  principle  sustained  the  decision.  But  if 
Congress  could  not  keep  slavery  out  of  a  territory,  how 
could  the  people  of  a  territory  keep  it  out  ?  A  non  sequi- 
titr  which  Douglas  ignored.^  Far  diflFerent  was  Mr.  Lin- 
coln's comment  on  the  decision.  It  was  made,  said  he, 
by  a  divided  court,  whose  decisions  on  constitutional 
questions,  "  when  fully  settled,  should  control  not  only 
the  particular  cases  decided  but  the  general  policy  of  the 

1  Scott  V.  Sandford,  19  Howard,  393  (1857). 

2  Nicolay  and  Hay's  Lincoln,  vol.  ii,  p.  84. 


THE   UNITED    STATES  197 

country,  subject  only  to  be  disturbed  by  amendments  to 
the  Constitution.  More  than  this  would  be  revolutionary." 
But  Lincoln  did  not  hesitate  to  pronounce  the  decision 
erroneous.  The  court  had  often  overruled  its  own 
decisions,  and  he  declared  that  the  party  to  which  he 
belonged  would  do  all  it  could  to  have  it  overrule  this 
one.  This  party  —  the  republican  —  would  offer  no  re- 
sistance to  the  decision,  but  would  labor  so  to  change 
public  sentiment  as  to  compel  a  new  decision.^  Instead 
of  forever  settling  the  slavery  issue,  the  Dred  Scott  de- 
cision broke  up  old  parties,  dividing  them  anew  into  one, 
the  democratic,  favoring  slavery  extension,  and  into  an- 
other, the  republican,  demanding  its  exclusion  from  the 
territories. 

On  the  1 8th  of  May,  i860,  the  republican  party,  in 
national  convention  at  Chicago,  nominated  Abraham  Lin- 
coln and  Hannibal  Hamlin  for  President  and  Vice-presi- 
dent on  a  platform  which  said  that  the  new  dogma, 
that  the  Constitution  of  its  own  accord  carried  slavery 
into  the  territories  was  a  dangerous  political  heresy.  The 
platform  asserted  that  the  normal  condition  of  all  the 
territories  of  the  United  States  was  one  of  freedom. 
The  democratic  party  was  a  house  divided  against  itself. 
The  followers  of  Douglas  nominated  him  for  the  presi- 
dency at  Baltimore  in  June,^  on  a  platform  declaring  that 
the  party  would  abide  by  the  decision  of  the  supreme 
court ;  but  the  extreme  wing  of  the  party,  assembled  also 
at  Baltimore  in  convention,  nominated  John  C.  Brecken- 
ridge  and  Joseph  Lane,  on  an  out  and  out  slavery  exten- 
sion platform ;  the  two  most  important  resolutions  of 
which  declared  it  to  be  the  duty  of  the  federal  govern- 
ment to  protect  the  property  and  rights  of  all  persons  in 
the  territories ;  that  under  the  right  of  state  sovereignty, 
the  people  in  forming  a  state  constitution  were  free  to 
adopt  or  to  prohibit  slavery,  and  that  a  state  thus  organ- 
ized ought  to  be  admitted,  whatever  its  constitution 
might   provide   respecting  slavery. 

The  election  of  i860  was  final  and  startling  proof  of 

1  Speech  of  June  26,  1857  ;  Works,  vol.  i,  p.  228. 

2  Herschel  V.  Johnson  was  later  put  on  the  ticket  with  Douglas,  by 
the  executive  committee,  for  vice-president. 


198     A    CONSTITUTIONAL    HISTORY    OF 

sectionalism  in  the  country.  Lincoln  and  Hamlin  were 
both  northern  men;  the  one  from  Illinois,  the  other 
from  Maine,  though  Lincoln  was  a  native  of  Kentucky. 
They  received  no  electoral  votes  and  but  few  popular 
votes  from  any  slave-holding  state.  Douglas  and  John- 
son carried  New  Jersey  and  one  slave  state,  Missouri. 
Breckenridge  carried  eleven  slave  states,  but  not  one  free 
state.  Three  slave  states  supported  Bell  and  Everett, 
the  nominees  of  the  Union  party.^  So  all  the  slave 
states  voted  against  Lincoln  and  all  save  one  of  the  free 
states  voted  for  him.  Long  before  his  nomination,  a 
secession  program  had  been  drawn  up  at  the  South,  and 
his  election  was  declared  a  sufficient  cause  for  dissolv- 
ing the  Union.  Threats  of  secession  had  at  times  been 
uttered  North  and  South,  from  the  day  of  the  inauguration 
of  the  government  down  to  the  South  Carolina  ordinance 
of  nullification.  They  had  been  freely  spoken  during  the 
debate  on  the  compromise  of  1850,  and  had  colored  the 
speech  and  action  of  radical  pro-slavery  men  since  that 
time. 

The  working  elements  of  secession  were  state  sov- 
ereignty, free  trade,  slavery  extension,  and  confederacy. 
In  every  great  struggle  in  which  either  of  these  elements 
had  hitherto  come  to  the  front  as  a  national  issue,  save 
in  the  repeal  of  the  compromise  of  1850  by  the  Kansas- 
Nebraska  act,  the  adherents  to  slavery  had  lost ;  but  all 
that  they  had  lost  seemed  now  regained  by  the  decision  in 
the  Dred  Scott  case.  From  the  time  when  the  legislature 
of  Alabama,  in  1837,  advocated  the  annexation  of  Texas, 
to  which  most  of  the  southern  states  responded,  the  South 
had  spoken  in  a  military  tone.  During  Pierce's  admin- 
istration the  South  had  been  gradually  put  into  a  condition 
of  military  defence,  largely  through  the  energy  of  the 
secretary  of  war,  Jefiferson  Davis.  Ultra-slavocrats,  like 
William  L.Yancey,  had  long  been  demanding  "  immediate, 
absolute,  and  eternal  separation,"  ^    This  was  the  south- 

1  Virginia,  Kentucky,  and  Tennessee.  The  Union  party's  platform 
was  "  Tiie  Constitution  and  the  laws  "  ;  a  party  of  siafu  quo  pacification. 

2  See  his  speech  delivered  in  the  Democratic  State  Convention  of  the 
State  of  Alabama,  held  at  Montgomery,  January  11-14,  1S60.  Pamphlet, 
Montgomery,  Advertiser  Book  and  Steam  House  Job  Print,  1S60,  p.  31. 


THE   UNITED    STATES  199 

ern  program,  if  Lincoln  should  be  elected.  The  issue  was 
plainly  put  by  the  governor  of  North  Carolina  in  October, 
1860/  when  he  said  that  Lincoln's  election  on  a  platform 
demanding  the  exclusion  of  slavery  from  the  territories 
imperilled  the  institution  throughout  the  South. 

Down  to  181 5  the  ultras  among  the  state  sovereignty 
party  complained  that  the  government  of  the  LTnited 
States  was  consolidated.  Then,  until  1833,  the  complaint 
ran  that  the  government  had  adopted  a  protective  policy- 
destructive  to  southern  interests.  From  this  time  until 
i860  the  federal  government  was  accused  of  seeking  to 
exclude  slavery  from  new  soil.  But  at  the  bottom  of  all 
these  complaints  were  the  radical  and  permanent  differ- 
ences between  the  two  social  and  industrial  systems  exist- 
ing in  the  country.  These  differences  were  accurately 
portrayed  in  the  "  Declaration  of  the  Causes  of  Secession," 
issued  by  South  Carolina  on  the  20th  of  November, 
i860.-  The  convention  which  passed  this  ordinance  ^ 
also  issued  an  "  Address  to  the  People  of  South  Caro- 
lina "  *  and  another  to  the  "  People  of  the  Slave-Holding 
States."  The  declaration  and  the  address  cited  as  prece- 
dents for  secession,  the  Declaration  of  Independence,  the 
Articles  of  Confederation  and  the  Constitution  of  the 
United  States.  The  compact  between  the  states,  so  ran 
the  declaration,  had  been  broken  by  the  northern  states, 
and  particularly  by  their  enactment  of  personal  liberty 
bills,  and  by  their  long  continued  hostility  to  slavery.  As 
the  result  of  this  agitation,  a  geographical  line  had  been 
drawn  across  the  Union ;  and  the  states  north  of  the  line 
had  united  in  the  election  of  a  President  who  had  declared 
that  "  the  government  could  not  endure  permanently  half 
slave  and  half  free,  and  that  the  public  mind  must  rest 
in  the  belief  that  slavery  was  in  the  course  of  ultimate 
extinction."  The  guarantees  of  the  Constitution  no  longer 
existed.    The  equal  rights  of  the  states  were  lost ;   there- 

1  Gov.  John  W.  Ellis  to  Gov.  W.  H.  Gist  of  South  Carolina,  October 
18,  i860;  Nicolay  and  Hay's  Lincoln,  vol.  ii,  p.  307. 

2  Journal  of  the  Convention  of  the  People  (i  South  Carolina  held  in 
i860,  1861,  and  1862,  together  with  the  Ordinances,  Reports,  Resolutions, 
etc.     Columbus,  South  Carolina,  1S62,  p.  873. 

3  Id.  p.  4.  *  Id.  p.  467. 


200     A    CONSTITUTIONAL   HISTORY    OF 

fore,  South  Carolina  resumed  her  position  among  the 
nations  of  the  world  as  a  separate  and  independent  state. 

But  the  irremediable  differences  between  the  two  sec- 
tions were  industrial  as  well  as  political,  as  was  clearly 
stated  in  the  South  Carolina  address :  "  The  union  of 
the  Constitution  was  a  union  of  slave-holding  states.  It 
rests  on  slavery  by  prescribing  a  representation  in  Con- 
gress for  three-fifths  of  our  slaves.  There  is  nothing 
in  the  proceedings  of  the  convention  which  formed  the 
Constitution  to  show  that  the  South  would  have  formed 
any  other  union ;  and  still  less,  that  they  would  have 
formed  a  union  with  more  powerful  non-slave-holding 
states  having  a  majority  in  both  branches  of  the  legis- 
lature of  the  government.  They  were  guilty  of  no  such 
folly.  Time  and  the  progress  of  things  have  totally 
altered  the  relations  between  the  northern  and  southern 
states  since  the  Union  was  established.  That  identity  of 
feelings,  interest,  and  institutions  which  once  existed  has 
gone.  They  are  now  divided  between  agricultural,  manu- 
facturing, and  commercial  states ;  between  slave-holding 
and  non-slave-holding  states.  Their  institutions  and  in- 
dustrial pursuits  have  made  them  totally  different  peoples. 
That  equality  in  the  government  between  the  two  sections 
of  the  Union  which  once  existed  no  longer  exists.  We 
have  but  imitated  the  policy  of  the  Fathers  in  dissolving 
the  Union  with  non-slave-holding  confederacies  and  seek- 
ing a  confederation  with  slave-holding  states. 

"  Experience  has  proved  that  slave-holding  states  can- 
not be  safe  in  subjection  to  non-slave-holding  states.  The 
fairest  portions  of  the  world  elsewhere  have  been  turned 
into  a  wilderness,  and  the  most  civilized  and  prosperous 
communities  have  been  impoverished  and  ruined  by  anti- 
slavery  fanaticism.  The  people  of  the  North  have  not 
left  us  in  doubt  as  to  their  design  and  policy.  United 
as  a  section  in  the  late  presidential  election,  they  have 
elected  as  an  exponent  of  their  policy  one  who  has  openly 
declared  that  the  states  of  the  United  States  must  be 
free,  not  slave.  It  is  true  that  amidst  those  who  aided 
his  election  there  are  various  shades  of  anti-slavery  hos- 
tility, but  if  African  slavery  in  the  southern  states  be 
the   evil    their    political    campaign    affirms    it    to   be,    the 


THE   UNITED    STATES  201 

requisites  of  an  inexorable  logic  must  lead  them  to  eman- 
cipation. If  it  is  right  to  preclude  or  abolish  slavery  in 
a  territory,  why  should  it  be  allowed  to  remain  in  the 
states  ?  The  one  is  not  at  all  more  constitutional  than  the 
other,  according  to  the  decisions  of  the  supreme  court  of 
the  United  States.  And  when  it  is  considered  that  the 
northern  states  will  soon  have  the  power  to  make  that 
court  what  they  please,  and  that  the  Constitution  has 
never  been  any  barrier  whatever  to  their  exercise  of  power, 
what  check  can  there  be  in  the  unrestrained  counsel  of 
the  North  to  emancipation  ?  " 

Separation  from  the  northern  states,  it  was  urged, 
invaded  none  of  their  rights  or  interests.  The  Constitu- 
tion of  the  United  States  had  been  made  and  adopted  by 
independent  states,  each  acting  for  itself.  South  Caro- 
lina, "  acting  in  her  sovereign  capacity,"  now  thought 
proper  to  secede  from  the  Union,  assured  that  she  had  not 
parted  with  her  sovereignty  in  adopting  the  Constitution. 
Circumstances  beyond  her  control,  it  was  said,  had  placed 
her  "  in  the  van  of  the  great  controversy  between  the 
northern  and  southern  states."  She  asked  her  sister 
slave-holding  states  to  be  one  with  her  in  a  great  slave- 
holding  Confederacy,  stretching  its  arms  over  a  territory 
larger  than  that  possessed  by  any  power  in  Europe;  with 
a  population  four  times  greater  than  that  of  the  whole 
United  States  when  they  achieved  their  independence; 
with  common  institutions  to  defend  and  with  productions 
which  made  its  existence  more  important  to  the  world 
than  that  of  any  other  people.^ 

The  spread  of  secession  was  rapid.  By  the  5th  of 
February,  1861,  six  slave  states  had  joined  South  Caro- 
lina and  had  adopted  similar  ordinances  of  secession. - 
On  the  day  before  Texas  seceded,  a  convention  of  these 
states  assembled  at  Montgomery,  Alabama,  and  adopted 
a  provisional  constitution  for  the  Confederate  States  of 
America.^    On  the  nth  of  March,  just  a  week  after  the 

1  Journal  of  the  Convention  of  the  People  of  South  Carolina  held 
in  i860,  1861,  and  1862,  together  with  the  Ordinances,  Reports,  Reso- 
lutions, etc.     Columbus,  South  Carolina,  1862,  pp.  472-475. 

2  Alabama,  January  4  ;  Mississippi,  January  9  ;  Florida,  January  10; 
Georgia,  January  19;  Louisiana,  January  26 ;  Texas,  February  5,  1861. 
For  these  ordinances  see  the  Journals  of  the  Conventions. 

3  February  9,  1861. 


202      A    CONSTITUTIONAL    HISTORY    OF 

inauguration  of  President  Lincoln,  a  permanent  consti- 
tution was  adopted,  and,  on  the  i8th,  Jefferson  Davis, 
lately  a  United  States  senator  from  Mississippi,  was  inaug- 
urated President  of  the  Confederacy,  and  Alexander  H. 
Stephens,  Vice-president.  The  secessionists  attempted  to 
bring  the  remaining  slave-holding  states  into  the  Con- 
federacy, and  were  successful  in  Virginia  ^  and  North 
Carolina,^  though  probably  a  majority  of  the  people  in 
both  states  were  opposed  to  the  movement,  and  they  were 
likewise  successful  in  Arkansas  ^  and  Tennessee,  though 
the  people  of  the  eastern  or  mountainous  portion  of  Ten- 
nessee refused  allegiance  to  the  Confederacy  and  remained 
loyal  to  the  Union.  The  Confederate  government  was  re- 
moved to  Richmond,  and  every  effort  was  made  to  secure 
the  co-operation  of  the  border  slave  states.  Though  for- 
mally admitted*  into  the  Confederacy,  the  border  states  did 
not  secede  from  the  Union. ^  But  in  Kentucky  and  Mis- 
souri, as  in  Tennessee,  there  was  a  powerful  and,  at  times, 
a  dominating  sentiment  favorable  to  the  Confederacy. 

The  constitution  of  the  Confederacy  was  modelled  after 
that  of  the  United  States,  but  varied  from  it  in  important 
particulars.  Its  preamble  declared  that  the  Constitution 
was  ordained  and  established  by  the  people  of  the  Con- 
federate states,  "  each  state  acting  in  its  sovereign  and 
independent  character."  The  importation  of  negroes  was 
forbidden  except  from  the  United  States.®  The  term  of 
the  President  and  Vice-president  was  six  years,  and  the 
President  was  not  re-eligible.''  In  place  of  the  figurative 
language  "  all  other  persons  "  in  the  national  Constitution 
describing  those  in  bondage,  the  constitution  of  the  Con- 

1  Its  ordinance  of  secession  passed  April  17,  1861. 

'^  May  20,  1861  ;  Journal  of  the  Convention,  pp.  13-16. 

8  May  6,  1861. 

*  The  acts  admitting  these  states  into  the  Confederacy  are  in  Statutes 
at  Large  of  the  Provisional  Government  of  the  Confederate  States  of 
America;  for  Tennessee,  May  17,  1S61,  p.  19;  for  Kentucky,  December 
10,  1861,  p.  222  ;  for  Missouri,  November  28,  1861,  p.  221  ;  for  Arkansas, 
May  21,  iS6r,  p.  120. 

5  See  its  resolutions  of  the  Confederacy  relating  to  the  accession 
of  Maryland,  December  21,  1861  ;  Confederate  Statutes  at  Large, 
p.  281. 

•'  Article  XII,  section  r,  clause  i. 

^  Article  I,  section  g,  clause  i. 


THE    UNITED    STATES  203 

federacy  used  the  word  "  slaves."  The  foundation  of  the 
new  government  was  slavery  and  state  sovereignty,  but 
the  constitution  contained  the  apparent  contradiction  that 
no  state  could  enter  into  any  treaty,  alliance,  or  confed- 
eration with  another  state.^ 

The  earliest  exposition  of  the  new  government  was  made 
by  its  Vice-president  in  a  public  address  at  Savannah,  in 
March,  1861,  in  which  he  pointed  out  the  provisions  in 
its  constitution  superior  to  those  of  the  United  States. 
According  to  Stephens,  these  improvements  were  the 
"  removal  of  the  old  thorn  of  the  tariff  " ;  the  inability  of 
the  Confederate  Congress  to  make  internal  improvements^ 
at  the  expense  of  the  Confederacy ;  the  privilege  of  cabi- 
net ministers  and  heads  of  departments  to  participate  in 
the  debates  of  the  two  Houses ;  -  the  longer  term  for  the 
President,  and  "  the  removal  of  the  rock  upon  which  the 
old  Union  had  split,"  namely,  agitation  against  African 
slavery.  The  foundations  of  the  new  government  were 
laid,  he  said,  and  its  corner-stone  rested,  "  upon  the  great 
truth  that  the  negro  is  not  equal  to  the  white  man ;  that 
slavery,  —  subordination  to  the  superior  race,  —  is  his 
normal  and  natural  condition."  And  he  declared  that 
it  was  the  first  government  in  the  history  of  the  world 
"  based  upon  this  great  physical,  philosophical,  and  moral 
truth."  ^  The  Confederacy  speedily  organized  its  Senate 
and  House.  The  territory  of  Arizona  was  created,  treaties 
were  made  with  the  Indian  tribes,  and  each  state  and  the 
territory  of  Arizona  was  constituted  a  judicial  district.' 
In  spite  of  the  Vice-president's  declaration, — that  the  old 
thorn  of  the  tariff  had  been  forever  removed,  —  the  Con- 
federate Congress,  just  two  months  later,  passed  an  act 
imposing  duties  upon  imports,^  and  planned  to  rely  upon 
the  efficacy  of  the  act  for  carrying  on  the  government. 
Thus,  within  ninety  days  after  the  inauguration  of  Presi- 

1  Article  I,  section  lo,  clause  i. 

2  Article  I,  section  6,  clause  2.  This  imitation  of  the  British  system 
proved  a  failure  ;  the  heads  of  the  departments  could  not  sustain  them- 
selves against  the  common  attack  of  the  members. 

•^  Speech,  March  21,  1861  ;  Johnston's  Orations,  vol.  iii,  p    164. 
*  Confederate  Statutes  at  Large,  Index  "Judicial  Districts." 
^  Act  of  May  21,    1861  ;    Statutes  at  Large  of  the  Provisional  Gov- 
ernment, pp.  127-135. 


204     A    CONSTITUTIONAL   HISTORY    OF 

dent  Lincoln,  the  United  States  was  confronted  by  a  thor- 
oughly organized  rebellion,  extending  over  one-third  of 
the  national  domain  and  including  nearly  one-third  of 
the  population  of  the  Union. 

The  program  of  secession,  which  had  been  in  process 
of  formation  during  i860,  had  received  no  check  from  the 
national  government  under  Buchanan,  who,  in  his  last 
annual  message,  sent  to  Congress  a  month  after  the  elec- 
tion of  Lincoln  and  Hamlin,  put  the  responsibility  for 
the  dissolution  which  then  threatened  the  Union  upon 
the  northern  people,  and  particularly  upon  the  abolition- 
ists. There  was  a  striking  similarity  between  a  portion 
of  this  message  and  Webster's  7th  of  March  speech, 
in  that  the  message  took  up  the  grievances  of  the  South 
against  the  North  and  emphasized  how  the  North  had 
violated  the  Constitution,  particularly  in  its  personal  lib- 
erty bills  and  in  its  refusal  to  execute  the  fugitive  slave 
law.  But  the  abstract  question  of  the  power  of  Congress 
to  coerce  a  state  had  become  concrete  since  Webster's 
day.  Buchanan  could  find  no  authority  under  the  Consti- 
tution for  the  coercion  of  a  state.  It  was  a  power  not 
specified  or  enumerated,  and  had  been  expressly  refused 
by  the  federal  convention ;  therefore  Buchanan  saw  no 
escape  from  the  dissolution  of  the  Union,  unless,  perhaps, 
the  Constitution  should  be  amended  in  three  particulars, 
and  each  for  the  benefit  of  slavery :  first  by  expressly 
recognizing  the  right  of  property  in  slaves,  secondly  by 
protecting  slave  property,  and  thirdly  by  executing  the 
fugitive  slave  law  everywhere  in  the  Union.  Such  an 
amendment  might  save  the  Union. ^  Thus  the  whole 
attitude  of  Buchanan's  administration  toward  the  secession 
movement  followed  a  let-alone  policy,  which  perhaps 
would  have  been  less  disastrous  if  it  had  been  strictly 
followed  by  Buchanan.  He  was  at  best  a  feeble  Presi- 
dent, and  some  of  the  members  of  his  cabinet  shared 
much  of  his  feebleness.  The  secretary  of  the  treasury, 
Howell  Cobb,  of  Georgia,  the  secretary  of  war,  John 
B.  Floyd,  of  Virginia,  and  the  secretary  of  the  interior, 
Jacob  Thompson,  of  Mississippi,  were  in  active  sympathy 

^  Message  of  December  3,  i860;  Richardson,  vol.  v,  p.  626. 


THE   UNITED    STATES  205 

with  secession  and  in  constant  though  secret  touch  with 
its  leaders.  They  strengthened  secession  by  every  act 
in  their  power,  and  at  last,  when  forced  by  public  opinion 
North  to  resign  from  the  cabinet,  Cobb  and  Floyd  loudly 
boasted  of  the  services  they  had  rendered  to  the  Confed- 
eracy.^ Congress  responded  to  Buchanan's  advice  by 
devoting  the  last  session  of  i860  to  perfecting  and  pass- 
ing a  constitutional  amendment  protecting  slavery.  This 
was  the  last  of  several  attempts  to  compromise  a  question 
which  had  already  passed  beyond  compromise.  The 
other  important  attempts  were  the  Crittenden  resolutions 
and  the  Peace  Conference. 

The  resolutions  -  which  originated  with  John  J.  Crit- 
tenden, a  senator  from  Kentucky,  were  based  upon  the 
principle  of  the  Missouri  compromise,  and  were  approved 
by  the  legislatures  of  Kentucky,  Tennessee,  Virginia,  and 
New  Jersey.  The  line  36°  30'  should  divide  the  territories. 
In  those  lying  to  the  north  of  this  line  slavery  should  be 
forever  prohibited ;  but  in  those  to  the  south,  slavery 
should  be  recognized,  protected,  and  never  interfered  with 
by  Congress.  The  people  of  these  southern  territories, 
when  they  became  states,  should  settle  the  question  of 
slavery  for  themselves.  Congress  should  not  abolish 
slavery  within  the  forts  or  other  federal  territory  in  slave 
states,  nor  in  the  District  of  Columbia,  so  long  as  it  was 
permitted  in  Maryland  and  Virginia.  The  interstate 
slave  trade  should  never  be  prohibited.  For  every  fugi- 
tive slave  rescued  by  violence,  the  United  States  should 
pay  the  owner  full  value ;  but  might  sue  the  county  in 
which  the  rescue  occurred  for  the  amount  paid,  and  the 
county,  in  like  manner,  might  sue  the  wrongdoer.  These 
resolutions  were  presented  at  various  times  in  Congress, 
up  to  the  2d  of  March,  1861,  but  were  defeated  in  both 
Houses. 

The  Peace  Conference  was  suggested  by  the  Virginia 
legislature,^  assembled  at  Washington  on  the  4th  of  Feb- 
ruary, and  represented  twenty-one  states.*     Virginia  fa- 

1  Nicolay  and  Hay's  Lincoln,  vol.  ii,  chaps,  xviii,  xxv. 

2  Macdonald,  Select  Documents,  p.  438. 
8  January  19,  1861. 

*  See  Report  of  its  Debates  and  Proceedings,  1864. 


2o6     A    CONSTITUTIONAL    HISTORY    OF 

vored  making  the  Crittenden  resolutions  an  amendment 
to  the  Constitution,  but  the  Conference  finally  adopted  a 
set  of  resolutions  which  it  proposed  should  be  made  the 
thirteenth  amendment  to  the  Constitution.  These  resolu- 
tions differed  from  the  Crittenden  resolutions  in  important 
particulars,  but  were  like  the  Crittenden  resolutions  in 
their  general  purpose  of  perpetuating  slavery.  The  Con- 
ference was  presided  over  by  John  Tyler,  lately  Presi- 
dent of  the  United  States,  a  moderate  man,  and  all 
parties  hoped  that  its  suggestion  might  conciliate  the  sec- 
tions. But  its  proposed  amendment  was  rejected  by  both 
Houses.^ 

A  multitude  of  resolutions  were  now  offered  in  both 
Houses  as  suitable  constitutional  amendments.  In  the 
Senate  a  special  committee  of  thirteen  ^  was  created  and  in 
the  House  a  committee  of  thirty-three,^  who,  it  was  hoped, 
might  work  out  the  desired  change.  The  movement  to 
secure  it  amounted  to  little  more  than  an  opportunity  for 
senators  and  representatives  to  express  their  ideas  of 
the  true  method  of  saving  the  Union.  Little  was  said, 
however,  by  the  Republicans  in  either  House,  for  they 
knew  that  they  were  yet  in  the  minority.  The  senators 
and  representatives  from  states  which  had  seceded  or 
were  planning  to  secede,  though  they  said  much,  took  little 
real  interest  in  the  discussion.  As  secession  was  a  fore- 
gone conclusion,  —  a  plan  already  agreed  upon,  —  any 
amendment  that  might  be  adopted  seemed  to  them  wholly 
unimportant.  They  were  preparing  their  farewell 
speeches,  to  be  delivered  when  they  should  resign  from 
Congress  and  join  their  friends  at  the  South.  But  the  two 
committees  entered  faithfully  upon  their  work,  well  aware 
that  while  they  were  laboring  zealously  to  preserve  the 
Union  by  concessions  to  the  South,  the  Gulf  states  were 
passing  ordinances  of  secession  and  organizing  a  slave- 
holding  confederacy.  Finally,  on  the  26th  of  February, 
Thomas  Corwin,  of  Ohio,  the  chairman  of  the  committee 
of  thirty-three,  moved,  as  a  substitute  for  the  amendment 

1  February  27-March  3,  1861, 

2  December  18-20,  i860;  Globe,  p.  158. 

8  Lecember  4-6,  1S60;  Globe,  pp.  6,  et  seq. 


THE   UNITED    STATES  207 

which  the  committee  had  advised,  a  resolution  to  be  known 
as  "  Article  XIII,"  in  these  words :  — 

"  No  amendment  shall  be  made  to  the  Constitution 
which  will  authorize  or  give  to  Congress  the  power  to 
abolish  or  interfere  within  any  state  with  the  domestic 
institutions  thereof,  including  that  of  persons  held  to 
labor  or  service  by  the  laws  of  said  states."  ^ 

The  House  agreed  to  Corwin's  substitute  by  a  vote  of 
one  hundred  and  twenty  to  sixty-one,  but  when  engrossed 
and  read  the  third  time  the  journal  showed  that  two- 
thirds  of  the  members  had  not  voted  in  the  affirmative 
and  it  thus  stood  defeated.  But  on  the  following  day 
the  question  was  reconsidered  and  the  amendment  passed 
by  one  hundred  and  thirty-three  to  sixty-five.^  The  House 
resolution  was  sent  to  the  Senate  on  the  day  when  Crit- 
tenden reported  the  resolutions  of  the  Peace  Conference, 
and  William  H.  Seward  brought  in  a  joint  resolution  call- 
ing for  a  national  constitutional  convention.  The  Corwin 
amendment  was  made  the  order  of  the  day  for  the  2d 
of  March.  An  unsuccessful  effort  was  made  to  substitute 
the  Crittenden  resolutions.  Wilkinson,  of  Minnesota,  who 
opposed  both  Corwin's  amendment  and  the  substitute 
which  had  been  offered,  declared  that  the  Constitution  was 
not  in  need  of  amendment.  "  The  people  of  the  North- 
west," said  he,  "  will  never  consent  that  the  southern  Con- 
federacy take  possession  of  the  mouth  of  the  Mississippi 
River.  This  act  of  itself  will  lead  to  war."  And  he 
offered  an  additional  section  to  the  amendment  before  the 
Senate,  that  "  no  state  has  the  power  to  withdraw  from 
the  Union,"  but  this  was  rejected  by  a  vote  of  twenty- 
eight  to  eighteen. 

Douglas  at  this  point  reminded  the  Senate  of  the  short- 
ness of  the  time,  and  urged  it  to  pass  the  Corwin  amend- 
ment, and  then  to  take  up  the  propositions  .of  the  peace 
conference.  "  This  is  not  a  question  of  compromise," 
said  Zachariah  Chandler,  of  Michigan,  "  but  a  question 
whether  we  have  a  government  or  not."  "  What  has  all 
this  to  do  with  the  question  before  the  country  ?  "  blandly 

1  Journal  H.  R.,  i86o-r86i,  p.  416.  See  the  report  of  the  Committee 
in  H.  R.  Report,  No.  XXXI,  36th  Congress,  Second  Session. 

2  Id.  p.  426;  Globe,  pp.  1 263-1 264,  1 284-1 285. 


2o8     A    CONSTITUTIONAL   HISTORY    OF 

inquired  Wigfall,  of  Texas.  "  The  Union  is  dissolved ; 
Texas  went  out  to-day;  what  do  you  propose  doing?" 

The  Senate  then  took  a  recess  until  seven  o'clock  Sun- 
day evening,  long  before  which  time  the  galleries  and  all 
available  space  on  the  floor  were  filled  with  spectators. 
They  had  come,  not  to  witness  the  end  of  Buchanan's 
administration,  but  the  beginning  of  Lincoln's. 

Crittenden  made  a  long,  eloquent,  but  unsuccessful 
appeal  for  his  resolutions.  Finally,  the  Corwin  amend- 
ment was  read  the  third  time,  and  the  roll  was  called. 
Twenty-four  votes  were  recorded  in  its  favor  and  twelve 
against  it,  and  the  presiding  officer,  Trusten  Polk,  of 
Missouri,  announced  that  it  had  passed.^  The  President, 
as  is  the  custom  at  the  close  of  the  session,  was  in  his 
room  at  the  capitol  busily  signing  his  name  to  public  acts. 
Shortly  before  the  time  fixed  for  the  inauguration  of  his 
successor,  Buchanan  signed  the  proposed  amendment 
which  would  make  slavery  in  the  United  States  national 
and  perpetual.  About  an  hour  later,  toward  the  close 
of  his  inaugural,  Mr.  Lincoln  referred  to  the  amendment, 
and  said  that  "  he  had  no  objection  to  its  being  made 
express  and  irrevocable."  ^ 

The  amendment  went  forth  to  the  states,  and  a  year  later, 
on  the  14th  of  February,  1862,^  was  ratified  by  the  consti- 
tutional convention  of  Illinois.  On  the  14th  of  June  fol- 
lowing, the  people  of  that  state  repudiated  the  convention 
by  rejecting  the  Constitution  which  had  been  submitted, 
and  thus  made  its  ordinance  of  ratification  of  no  effect.* 
The  Ohio  and  Maryland  legislatures  also  ratified  the 
amendment,  but  it  went  no  further,  and  was  forgotten 
amidst  the  crisis  of  civil  war. 

The  right  and  expediency  of  secession  were  discussed 
by  President  Lincoln  in  his  inaugural.  The  central  idea 
of  secession,  said  he,  is  the  essence  of  anarchy,  the  abdi- 
cation of  popular  government ;  and  in  a  message  to  Con- 
gress  convening  on   the  4th   of  July,   he   declared  that 

1  Senate  Journal,  pp.  382,  et  scq.  ;  Globe,  pp.  1402,  et  seq. 

2  Works,  vol.  ii,  p.  6. 

8  Journal  of  the  Convention,  pp.  358,  450,  451  ;  "Documentary  His- 
tory of  the  Constitution,"  vol.  ii,  p.  518. 

*  Yox  the  Constitution,  125,052  ;  against  it,  141,103. 


THE   UNITED    STATES  209 

the  issue  expressed  more  than  the  fate  of  the  United 
States,  for  it  represented  to  the  whole  family  of  man  the 
question  whether  a  constitutional  republic  could  maintain 
its  territorial  integrity  against  domestic  foes.  The  sophism 
consisted  in  the  claim  that  a  state  could  constitutionally 
withdraw  from  the  Union.  The  Union,  said  he,  is  older 
than  the  states,  and  in  fact  created  them  as  states.  Their 
reserved  powers  do  not  include  that  of  destroying  it.  This 
truth  was  the  more  forceful  with  respect  to  the  newer 
states  which  had  been  organized  from  the  domain  acquired 
by  the  nation.  Was  it  lawful  and  consistent  that  they 
should  secede  and  repudiate  their  part  of  the  national 
obligation  ?  The  seceders  insisted  that  secession  was  con- 
stitutional, but  in  the  Constitution  of  the  Confederacy, 
which  they  had  organized,  they  had  discarded  the  prin- 
ciple of  secession.  If  secession  was  justifiable,  where  was 
it  to  end,  and  what  would  prevent  the  continuation  of 
anarchy  and  the  formation  of  endless  confederacies?  If 
secession  was  right,  then  there  must  be  an  end  to  the  re- 
publican form  of  government.^ 

The  national  government  took  measures  to  suppress  the 
rebellion  as  speedily  as  possible.  By  the  law  of  August 
6,  1861,^  rebel  property  was  declared  confiscated,  and  also 
slaves,  whose  labor  contributed  to  the  strength  of  the  Con- 
federacy. Before  the  close  of  the  month,  the  act  was 
interpreted  in  an  unexpected  way  by  a  proclamation  of 
General  Fremont,  declaring  free  the  slaves  of  persons  in 
the  state  of  Missouri  who  had  taken  up  arms  against 
the  United  States.^  The  government  was  not  ready  for 
so  radical,  so  unlawful,  a  measure,  and  the  President  soon 
ordered  its  modification  ;  but  the  practical  efifect  of  Fre- 
mont's act  was  favorable  to  emancipation.  Slaves  were 
hedged  about  by  the  laws  securing  every  man's  property 
from  seizure  for  public  uses  without  his  own  consent  and 
without  compensation,  and  though  slave  labor  was  now 
the  sinews  of  the  rebellion,  all  who  supported  the  Confed- 
eracy insisted  that  the  United  States  must  respect  the 

1  Message,  July  4,  1861  ;  Works,  vol.  ii,  p.  55  ;  Richardson,  vol.  vi, 
p.  20. 

^  Statutes  at  Large,  vol.  xu,  p.  319. 

2  August  30,  1S61 ;  War  Records,  vol.  iii,  p.  446. 

14 


210     A    CONSTITUTIONAL   HISTORY    OF 

principle.  The  government  did  not  enter  upon  the  sup- 
pression of  the  rebelHon  with  the  purpose  of  exterminat- 
ing slavery ;  its  sole  purpose  was  to  preserve  the  Union. 

The  border  states  had  not  joined  the  Confederacy,  and 
it  was  essential  to  the  existence  of  the  Union  that  they 
should  remain  loyal.  A  war  on  slavery  would  antagonize 
them  and  perhaps  imperil  the  Union.  But  the  war  was 
changing  social  conditions  and  public  sentiment.  As  the 
national  armies  advanced  into  the  slave-holding  states, 
fugitive  slaves  gathered  about  them  in  such  numbers  as 
to  cause  embarrassment.  Were  they  persons  or  property  ? 
Should  they  be  seized  under  the  act  of  confiscation? 
Should  they  be  returned  to  their  masters,  or  should  they 
be  utilized  as  "  contraband  of  war  "  for  the  benefit  of  the 
Union?  Gradual  emancipation  had  been  tried  in  the 
older  states  in  the  early  part  of  the  century,  but  had  been 
rejected  in  all  the  border  states.  Emancipation  with  or 
without  compensation  by  the  United  States  raised  a  new 
and  a  grave  constitutional  question.  As  a  step  toward  its 
solution,  the  President  drafted  a  scheme  for  compensatory 
emancipation  in  Delaware,  in  which  state  there  were  the 
fewest  slaves. 

Meanwhile,  Congress  had  amended  the  confiscation  act,^ 
by  providing  that  slaves  escaping  from  masters  engaged  in 
rebellion  and  taking  refuge  with  the  army  were  to  be 
treated  as  captives  of  war,  and  to  be  forthwith  and  forever 
free,  and  the  President  was  authorized  to  employ  as  many 
negroes  as  he  thought  necessary  in  aid  of  the  suppression 
of  "the  rebellion.  This  authority  to  organize  negro  regi- 
ments was  without  precedent.  On  the  19th  of  June 
Congress  abolished  slavery  in  the  territories  of  the  United 
States,^  and  thus  put  into  legal  form  a  clause  in  the  plat- 
form on  which  Lincoln  had  been  elected, — that  the  normal 
condition  of  all  the  territories  of  the  United  States  is  that 
of  freedom.  A  week  later  slavery  was  abolished  in  the 
District  of  Columbia,  and  the  laws  discriminating  against 
persons  of  color  in  judicial  proceedings  were  repealed. 
On  the  7th  of  April  the  United  States  and  Great  Britain 

1  July  17,  1862  ;  Statutes  at  Large,  vol.  xii,  p.  589. 

2  Id.  vol.  xiii,  p.  432. 


THE    UNITED    STATES  211 

concluded  a  treaty  for  the  suppression  of  the  African 
slave  trade,  ae^reeing  to  employ  their  navies  to  prevent 
the  traffic.^  Thus,  in  the  months  of  June  and  July,  1862, 
Congress  overruled  the  decision  in  the  Dred  Scott  case  as 
to  its  power  to  restrict  slavery  in  the  territories. 

Delaware  refused  to  co-operate  with  the  President  in 
a  policy  of  gradual  and  compensatory  emancipation ;  nev- 
ertheless the  President  sent  a  special  message  to  Congress 
recommending  the  adoption  of  the  policy.  It  was  favor- 
ably received  by  Congress,  but  no  state  expressed  a  will- 
ingness to  co-operate  until  co-operation  was  too  late. 
Congress  could  abolish  slavery  in  the  territories,  but,  as 
Mr.  Lincoln  explicitly  declared,  his  compensatory  plan 
must  be  accepted  by  a  state  voluntarily,  as  "  emancipation 
was  a  subject  exclusively  under  the  control  of  the  states 
and  must  be  adopted  or  rejected  by  each  for  itself."  The 
United  States  had  no  right  to  coerce  a  state.^  The  Presi- 
dent, foreseeing  the  extinction  of  slavery,  now  appealed 
to  the  representatives  of  the  border  states  in  Congress  to 
avail  themselves  of  his  compensatory  policy.  He  argued, 
after  an  economic  fashion,  that  the  money  necessary  to 
carry  out  the  policy,  —  one  hundred  and  seventy- four  mil- 
lion dollars,  —  was  no  more  than  the  cost  of  the  war  for 
eighty-seven  days,  and  that  it  had  better  be  saved  in 
emancipation  than  sunk  in  war.^ 

The  first  form  of  the  confiscation  bill  had  not  met  the 
President's  approval.  It  was  startling,  he  said,  to  say 
that  Congress  could  free  a  slave  within  a  state;  and  yet, 
if  it  were  said  that  the  ownership  of  the  slave  had  first 
been  transferred  to  the  Union,  and  that  Congress  had  then 
liberated  him,  the  difficulty  would  vanish."*  This  was  rec- 
ognizing the  rights  of  property,  and  the  right  of  a  state 
to  control  its  domestic  affairs ;  in  other  words.  Congress 
had  no  power  to  invade  the  right  of  a  state  by  declaring 
slaves  within  it  free.  Emancipation  must,  therefore,  pro- 
ceed in  the  exercise  of  the  war  power.  The  slaves  were 
equivalent  to  an  effective  Confederate  army.  If  they  were 
treated  as  munitions  of  war  and  eliminated  from  the  con- 
test, the  rebellion  would  be  so  much  nearer  suppression. 

1  Treaties  and  Conventions,  p.  454.  2  Works,  vol.  ii,  p.  132. 

3  March  14,  1862;  Works,  vol.  ii,  p.  137.        *   Id.  p.  210. 


212     A    CONSTITUTIONAL    HISTORY    OF 

On  the  22d  of  July,  1862,  the  war  department  author- 
ized army  and  navy  commanders  to  employ  as  laborers, 
and  for  military  and  naval  purposes,  as  many  persons  of 
African  descent  as  could  be  used  advantageously.  On 
the  same  day  the  President  submitted  to  his  cabinet  the 
first  draft  of  an  emancipation  proclamation.  It  provided 
that  on  the  1st  day  of  January,  1863,  all  persons  held  as 
slaves  within  any  state  in  which  the  constitutional  author- 
ity of  the  United  States  was  not  practically  recognized  and 
maintained  should  "  then,  thenceforward,  and  forever  be 
free."  ^  This  proclamation  would  free  many  slaves,  but 
would  not,  because  it  could  not,  abolish  slavery.  It  was 
conditional.  If  the  people  in  the  states  in  rebellion  re- 
turned to  their  allegiance  it  would  not  be  issued.  The 
President  was  convinced  that  the  proclamation  would  be 
supported  by  public  sentiment  in  the  loyal  states,  but  he 
awaited  a  favorable  moment  for  issuing  it.  On  the  17th 
of  September  the  army  was  victorious  at  Antietam,  and 
five  days  later  the  proclamation  was  issued.-  It  freed  the 
slaves  in  states  and  parts  of  states  carefully  designated, 
that  might  be  engaged  in  rebellion  on  the  ist  of  January, 
1863.  It  was  issued  as  a  war  measure,  and,  as  the  Presi- 
dent believed,  was  fully  warranted  by  the  Constitution. 
The  majority  in  Congress  and  the  mass  of  the  northern 
people  were  in  sympathy  with  it.^ 

Soon  after  Virginia  had  passed  the  ordinance  of  seces- 
sion,'* the  people  of  the  forty  counties  in  the  western  part 
of  the  state  organized  a  loyal  government  at  Wheeling 
and  proceeded  to  form  a  new  state.  In  November  a 
convention  prepared  a  constitution,  which  in  the  following 
April  was  ratified  by  popular  vote.^  The  petition  for  the 
admission  of  West  Virginia  raised  a  new  question.  Had 
the  consent  of  Virginia  been  given  in  a  lawful  manner? 

1  Works,  vol.  ii,  p.  213.  - 

2  Lincoln's  Works,  vol.  ii,  p.  237. 

3  See  the  action  of  the  House,  December  1 5,  18^2.  as  civen  in  Nicolay 
and  Hay's  Lincoln,  vol.  ii,  p.  171 ;  also  Congressional  Globe,  December, 
1862. 

*  June,  1861. 

^  The  convention  assembled  November  26,  1861-February  18,  1862. 
The  vote  was  18,862  to  514. 


THE    UNITED    STATES  213 

Could  Congress  admit  it  as  a  new  state  ?  Its  constitution 
provided  that  no  slave  or  free  person  of  color  should  be 
suffered  to  enter  the  state,  but  this  restriction  was  elim- 
inated by  Congress  in  the  enabling  act,  which  substituted 
a  clause  for  the  gradual  emancipation  of  slaves  after  the 
4th  of  July,  1863.^ 

The  admission  of  West  Virginia  and  the  condition  of 
gradual  emancipation  raised  a  constitutional  question  on 
which  the  cabinet  was  divided.-  Congress  put  the  respon- 
sibility of  the  decision  on  the  President,  who,  though  he 
thought  it  more  properly  a  question  for  Congress  to  decide, 
did  not  evade  it.  To  the  argument  of  expediency,  which 
was  strong  and  unanswerable,  was  added  one  of  authority. 
Had  a  majority  of  the  qualified  voters  of  Virginia  partici- 
pated in  the  decision  favoring  the  organization  of  the  new 
state?  The  consent  of  the  legislature  of  Virginia  was 
constitutionally  necessary  to  the  law  allowing  West  Vir- 
ginia to  become  a  state.  A  body  claiming  to  be  such  a 
legislature  had  given  its  consent.  This  could  not  well  be 
denied,  said  the  President,  unless  upon  outside  knowledge 
this  body  had  not  been  chosen  by  a  majority  of  the  electors. 
"  But,"  said  he,  "  it  is  a  usual  practice  in  popular  elections 
to  give  no  legal  consideration  whatever  to  those  who  have 
not  chosen  to  vote  as  against  the  effect  of  those  who  choose 
to  vote ;  hence  it  is  not  the  qualified  voters,  but  the  qualified 
voters  who  choose  to  vote,  that  constitute  the  power  of  the 
state."  ^  As  Lincoln  expressed  it,  there  is  a  difference 
between  secession  against  the  Constitution  and  secession 
in  favor  of  it.  He  signed  the  bill,  and  on  the  19th  of 
June,  1863,  West  Virginia  was  admitted.  It  was  the 
first  slave-holding  state  which  provided  for  gradual 
emancipation.  So  swift  were  changes  in  public  opinion 
that  in  less  than  two  years  from  the  day  of  its  admission 
its  legislature  was  busily  preparing  a  constitutional 
amendment  for  the  immediate  abolition  of  slavery. 

In  his  annual  message  in  December,  Lincoln  recom- 
mended to  Congress  an  amendment  to  the  Constitution 
providing  compensation  from  the  United  States  to  every 

1  Enabling  Act,  December  31,  1862  ;  Statutes  at  Large,  vol.  xii,  p.  634. 

2  For  its  opinions,  see  Nicolay  and  Hay's  Lincoln,  vol.  vi,  p.  300. 
^  December  31,  1862;  Lincoln's  Works,  vol.  ii,  p.  285. 


214     A    CONSTITUTIONAL    HISTORY    OF 

state  that  might  abohsh  slavery  before  January  i,  1900. 
Slaves  freed  by  the  chances  of  war  during  the  rebellion 
should  remain  free,  and  provision  should  be  made  for 
colonizing  free  colored  persons,  with  their  own  consent, 
at  any  place  outside  of  the  United  States.^  The  President's 
policy  was  to  recognize  the  loyal  population  of  the  states 
in  rebellion  as  the  body  truly  constituting  these  states, 
and  to  protect  this  population  with  national  troops.  This 
idea  was  the  germ  of  Lincoln's  policy  of  reconstruction, 
the  true  nature  and  operation  of  which,  because  of  his 
sudden  death,  can  never  be  known.  Military  governors 
were  appointed  for  Tennessee,  North  Carolina,  Louisiana, 
and  Arkansas,^  with  the  understanding  that  the  national 
troops  should  be  withdrawn  as  soon  as  the  loyal  inhab- 
itants of  these  states  had  organized  civil  governments  in 
conformity  to  the  Constitution  and  were  able  to  protect 
themselves. 

When  the  ist  of  January,  1863,  came,  the  loyal  people 
of  the  country  were  prepared  to  welcome  the  emancipation 
proclamation  both  as  a  military  and  as  a  political  ultima- 
tum. Its  opponents  denied  that  it  freed  a  single  slave.^ 
Whether  or  not  the  proclamation  was  constitutional,  it 
shook  the  institution  of  slavery  to  its  foundations,  for  it 
made  property  in  slaves  wholly  insecure.  The  admission 
of  the  negro  into  the  army  and  navy  put  a  new  value 
upon  him,  both  in  his  own  estimation  and  in  that  of  all 
loyal  people.  As  soon  as  he  was  risking  his  life  in  battle 
for  the  Union  he  was  on  the  way  to  admission  to  the 
civil  and  political  privileges  of  white  men.  Thus  the 
proclamation  involved  the  ultimate  question  of  United 
States  citizenship  for  the  negro,  and  aided  to  set  aside  the 
decision  in  the  Dred  Scott  case. 

Missouri  did  not  come  within  the  operation  of  the 
proclamation,  but  a  policy  of  emancipation  had  been 
rapidly  developing  in  that  state.*     In  February,  1861,  a 

1  December  i,  1862;  Lincoln's  Works,  vol.  ii,  p.  261. 

2  March-May,  1862. 

2  See  Joel  Parker's  Law  Lectures  delivered  at  Harvard  College,  1866 
and  at  Harvard  and  Dartmouth,  1 867-1 868  ;  Hurd  and  Houqhton,  New 
York,  1 866- 1 869. 

*  The  authorities  for  statements  respecting  Missouri  are  the  Journals 


THE   UNITED    STATES  215 

convention  met  at  Jefferson  City,  and  its  loyal  members 
succeeded  in  preventing  the  adoption  of  an  ordinance  of 
secession.  Missouri  had  nothing  to  gain  by  joining  the 
southern  Confederacy.  It  had  no  sympathy  with  the 
policy  of  free  trade,  but  at  this  time  many  of  its  people 
imagined  that  it  might  play  the  part  of  peacemaker  be- 
tween the  sections.  Some  of  its  citizens  believed  that 
whatever  side  it  favored  would  ultimately  prevail.  Pro- 
slavery  men  talked  of  "  forty  millions  of  slave  property  in 
the  state  that  must  be  protected."  They  denied  the  right 
of  the  government  to  coerce  a  state,  but  recognized  that 
the  real  coercion  in  the  country  was  the  force  of  events 
transpiring  about  them :  the  influx  of  foreign  population, 
the  rapid  increase  of  the  old,  free  states  in  wealth,  and 
the  prospective  strength  of  new  free  states  of  the  North- 
west. Thus  Missouri  would  soon  be  nearly  surrounded 
by  free  soil,  and  the  safety  of  her  property  in  slaves  would 
be  imperilled.  The  issue  in  Missouri,  therefore,  was  to 
pursue  a  policy  most  advantageous  to  the  state.  Though 
the  peril  to  slave  property  was  clear,  none  the  less  clear 
was  the  danger  from  negro  emancipation.  What  would 
be  done  with  the  slaves  if  they  were  made  free?  How- 
ever, these  questions  were  not  freely  discussed  in  the  state 
until  about  the  time  of  the  emancipation  proclamation. 
Most  of  the  officials  in  power  in  the  state,  at  the  out- 
break of  the  war,  had  been  in  sympathy  with  the  Confed- 
eracy. The  shock  of  war  cleared  the  political  air  and 
laid  bare  the  true  interests  of  the  state.  This  was  shown 
by  the  action  of  the  convention.  It  re-assembled  on  the 
22d  of  July,  1861,  declared  the  state  offices  vacant,  passed 
ordinances  affirming  the  loyalty  of  the  state,  and  forever 
settled  the  question  of  its  conjunction  with  the  Confed- 
eracy. Thus,  the  act  of  the  Richmond  government  which 
had  admitted  the  state  into  the  Confederacy  ^  was  made 
of  no  effect.  Again,  assembling  in  October  at  St.  Louis, 
the  convention  denied  the  right  of  secession,  but  demanded 
that  the  national  government  should  renounce  any  purpose 

of  its  Conventions  in  1861,  1862,  1863,  and  1865;  six  volumes,  February 
28,  i86t-April  10,  1865. 

1  November  28,  1861  ;  Statutes  at  Large,  C.  S.  A,,  1861-2,  p.  221. 


2i6     A    CONSTITUTIONAL   HISTORY    OF 

to  interfere  with  slavery.  This  was  the  last  demand  of 
the  kind  from  any  state. 

In  June,  1862,  public  opinion  in  Missouri  had  reached 
the  point  at  which  it  was  willing  to  tolerate  gradual  eman- 
cipation, and  Judge  Breckenridge  offered  an  ordinance 
to  this  effect  in  the  convention,  on  the  7th.  He  proposed 
that  after  the  ist  of  January,  1865,  all  negroes  born  in 
slavery  in  the  state  should  be  considered  slaves  until  they 
reached  the  age  of  twenty-five.  This  was  a  remarkable 
ordinance  to  emanate  from  a  slave-holding  state.  Its 
distinguished  author  told  the  convention  that  in  Missouri 
the  institution  of  slavery  was  doomed,  for  the  war  had 
already  settled  its  fate.  He  wished  to  put  the  state  on  a 
plane  with  its  free  neighbors,  and  to  attract  its  share  of 
immigrants  and  foreign  capital.  He  would  develop  its 
resources,  which  would  never  be  developed  as  long  as 
slavery  was  continued.  But  the  state  was  in  debt  and 
could  not  bear  the  expense  of  compensatory  emancipation, 
—  this  should  be  partly  borne  by  the  general  government. 
On  the  preceding  loth  of  April,  Congress,  by  a  joint 
resolution,  had  offered  to  co-operate  with  any  state  in  a 
compensatory  policy  of  abolition.^  But  the  majority  of 
the  members  of  the  Missouri  convention  were  unwilling 
at  that  time  to  accept  the  policy.  The  opportunity  was 
never  presented  to  them  again. 

Just  three  days  after  this  decision  of  Missouri  respect- 
ing slavery  was  made,  one  himdred  and  seventy-five  men 
from  the  loyal  counties  of  the  state  met  in  convention  at 
Jefferson  City  for  the  purpose  of  inaugurating  a  cam- 
paign of  emancipation.  The  President's  proclamation 
followed  soon  after  their  assembling.  The  November 
elections  indicated  clearly  enough  the  trend  of  public  sen- 
timent at  the  North,  and  a  bill  was  introduced  in  the 
national  House  of  Representatives,  by  one  of  the  Missouri 
members,  appropriating  twenty  millions  to  aid  the  state 
in  the  abolition  of  slavery.  Its  constitutionality  was  ques- 
tioned. Could  the  United  States  perform  a  task  which 
properly  belonged  to  a  sovereign  state?  The  Missouri 
legislature  also  discussed  the  question,  but  reached  no  con- 

1  Statutes  at  Large,  vol.  xii,  p.  617. 


THE   UNITED    STATES  217 

elusion,  and  the  whole  matter  remained  unsettled.  Thus, 
at  the  close  of  the  year  1862  no  state  had  taken  active 
measures  to  abolish  slavery.  In  the  following  June,  the 
governor  of  Missouri,  Hamilton  R.  Gamble,  reassembled 
the  convention  expressly  to  act  upon  the  subject  of  eman- 
cipation. He  still  hoped  that  Lincoln's  compensatory 
policy  might  be  carried  out,  but  the  Missouri  legislature 
would  do  nothing  because  it  considered  itself  limited  by 
the  state  constitution.  Slavery,  as  every  member  knew, 
was  doomed.  There  remained  only  to  provide  against  the 
worst  disasters  which  might  follow.  The  evil  days  might 
be  delayed.  On  the  first  day  of  the  convention,  Charles 
F.  Drake,  of  St.  Louis,  submitted  an  ordinance  for  gradual 
emancipation  and  the  abolition  of  slavery.^  Various  dates 
were  suggested ;  and  the  committee  finally  reported  a  plan 
by  which  slavery  should  cease  in  the  state  on  the  4th  of 
July,  1876. 

As  in  Kentucky  in  1849,  so  now  in  Missouri,  free  and 
slave  states  were  contrasted.  Ohio,  Indiana,  Illinois,  and 
Iowa,  none  of  which  by  nature  surpassed  Missouri  in 
wealth,  it  was  said  now  far  outranked  her  in  production, 
population,  and  prosperity.  The  cause  of  the  backward- 
ness of  Missouri  was  slavery.  It  was  too  late  to  expect 
compensation  for  slaves  from  the  general  government. 
Missouri  must  emancipate  her  slaves  and  thus  give  them 
up  voluntarily,  or  be  a  witness  to  their  flight  from  the 
state,  and  sufifer  from  the  loss  of  their  labor.  After  an 
exciting  debate,  a  constitutional  amendment  was  adopted 
on  the  1st  of  July.  The  scheme  of  gradual  emancipation 
should  begin  on  the  4th  of  July,  1870,  but  the  scheme  did 
not  reflect  the  advanced  thought  of  the  state.  An  agita- 
tion, lasting  two  years,  for  abolition,  now  shook  the  state. 
The  radical  emancipationists  took  up  the  question,  and  at 
the  presidential  election  of  1864  obtained  full  control  of 
the  government.  Another  convention  was  called,  and  met 
on  the  6th  of  January,  1865,  at  St.  Louis.  On  the  nth 
slavery  was  abolished,  and  an  amendment,  the  language 
of  which  was  taken  from  the  ordinance  of  1787,  was 
adopted  by  an  overwhelming  vote.     The  news  was  tele- 

1  June  15,  1863. 


2i8     A    CONSTITUTIONAL   HISTORY    OF 

graphed  over  the  Union.  Yates,  the  famous  war-governor 
of  IlHnois,  returned  a  congratulatory  message.  The  news 
was  laid  before  the  House  of  Representatives  at  Washing- 
ton, by  the  Speaker,  Schuyler  Colfax,  on  the  i6th,  and  the 
official  communication  from  the  governor  of  Missouri  was 
ordered  to  be  preserved  among  the  archives  of  the  nation. 
The  policy  of  emancipation,  with  the  political  trans- 
formation which  it  implied,  was  also  taken  up  in  other 
slave-holding  states.  The  emancipation  proclamation 
applied  to  Arkansas,  but  not  until  August,  1863,  did 
military  movements  enable  its  loyal  people  to  gain  control 
of  the  state.  On  the  8th  of  December  the  President  issued 
a  proclamation  of  amnesty  and  reconstruction,^  very  lib- 
eral and  humane,  offering  full  pardon  to  all  persons,  with 
few  exceptions,  who  had  been  implicated  in  the  rebellion. 
If  not  less  than  one-tenth  of  the  number  of  persons  who 
had  voted  in  the  state  at  the  presidential  election  of  i860, 
and  had  taken  the  required  oath  and  observed  it,  would 
unite  in  political  action,  the  President  was  willing  that 
they  should  be  permitted  to  re-establish  a  state  govern- 
ment. On  the  5th  of  January,  1864,  he  sent  to  the 
commanding  federal  officer  in  Arkansas  the  necessary 
blank-books  to  be  used  in  inaugurating  the  new  govern- 
ment, and  this  day  may  be  taken  as  the  beginning  of  the 
so-called  era  of  reconstruction.  But  the  loyal  people  of  the 
state  had  already  assembled  in  convention,-  and  had  de- 
clared the  ordinance  of  secession  null  and  void.  On  the 
22d  of  January  they  abolished  slavery.  The  President 
recognized  the  convention  as  a  lawful  body,  and  ordered 
General  Steele  to  support  it.  The  new  constitution  was 
ratified ;  loyal  state  and  county  officers  were  chosen,  and 
the  new  government  was  inaugurated  on  the  i  ith  of  April, 
Congress  refused  to  admit  the  senators  and  representatives 
which  the  new  government  chose,  and  showed  a  dispo- 
sition to  oppose  the  President's  policy  of  reconstruction ; 
but  the  state,  trusting  to  the  justice  of  its  course,  declared 
itself  allegiant  to  the  Union.  It  was  the  first  slave-holding 
commonwealth  to  abolish  slavery  immediately  and  without 
condition.     This  was  a  state,  not  a  national,  act. 

1  T,incoln's  Works,  vol.  ii,  p.  443. 

2  Journal  of  the  Convention,  January  4-23,  1S64. 


THE   UNITED    STATES  219 

Virginia  at  this  time  was  in  an  anomalous  condition. 
It  seemed  to  have  two  governments :  a  disloyal  one  at 
Richmond,  a  loyal  one  at  Alexandria.  The  Pierpoint 
government  at  Alexandria  had  authority  over  only  a  small 
portion  of  the  state,  but  it  represented  the  loyal  people. 
On  the  13th  of  February,  1864,  a  convention  assembled 
at  Alexandria,^  representing  the  loyal  citizens  of  the  state, 
and  on  the  nth  of  April  promulgated  a  new  constitution, 
one  clause  in  which  abolished  slavery.  The  President 
treated  Virginia  as  he  had  treated  Arkansas.  Congress 
refused  to  recognize  the  validity  of  the  Pierpoint  gov- 
ernment, but  by  one  of  those  paradoxes  which  it  is  im- 
possible to  harmonize  with  precedents,  Congress  later 
considered  the  ratification  of  the  thirteenth  amendment  by 
the  Pierpoint  government  as  the  authoritative  act  of  the 
state  of  Virginia. 

The  President's  policy  of  reconstruction,  which  recog- 
nized loyalty  wherever  found  at  the  South,  led  him  in 
October,  1862,  to  lend  a  helping  hand  to  the  people  of 
Louisiana.-  He  was  anxious  that  the  state  should  adopt 
a  free  constitution  which  would  provide  adequately  for 
the  education  of  the  negro,  but  this  should  be  done  as  far 
as  possible  without  the  aid  of  federal  troops.  The  city 
of  New  Orleans  and  some  adjacent  parishes  were  under 
their  control.  Largely  under  the  direction  of  the  Presi- 
dent, the  government  of  the  state  was  re-organized,  and  in 
January,  1864,  Michael  Hahn,  the  free  state  candidate, 
was  elected  governor.  In  a  private  letter  to  him,^  Lincoln 
suggested  that  in  defining  the  elective  franchise  the  ap- 
proaching convention  should  let  in  some  of  the  colored 
people,  as,  for  instance,  the  very  intelligent,  and  those  who 
had  fought  in  the  ranks  of  the  Union.  This  was  the  first 
suggestion  from  President  Lincoln  that  the  right  to  vote 
might  be  given  to  the  negro. 

The  convention  assembled  at  New  Orleans  on  the  6th 
of  April,  and  after  an  exceedingly  stormy  session,  amidst 
great  excitement  it  abolished  slavery  on  the  nth  of  May.* 

1  Journal  of  the  Convention,  February  13-April  8,  1864;  Alexandria. 

2  Lincoln's  Works,  vol.  ii,  p.  247. 

3  March  13,  1S64;   Works,  vol.  ii,  p.  496. 

*  Debates  of  the  Louisiana  Convention,  1S64,  PP-  208, 


220     A    CONSTITUTIONAL   HISTORY    OF 

The  President's  suggestion  about  the  franchise  was  par- 
tially carried  out;  the  new  constitution,  while  restricting 
the  right  to  vote  to  white  males,  empowered  the  legis- 
lature to  extend  the  suffrage  "  to  such  other  persons  as  by 
their  intelligence  or  military  services  might  be  considered 
entitled  to  it."  ^  All  able-bodied  men  in  the  state,  irre- 
spective of  race,  were  to  be  enrolled  in  the  militia,  a  more 
liberal  provision  than  could  be  found  at  this  time  in  the 
constitution  of  any  free  state.  In  October  the  legislature 
elected  United  States  senators,  but  Congress  refused  to 
admit  them. 

Maryland,  like  Missouri,  did  not  come  within  the  oper- 
ation of  the  emancipation  proclamation.  Since  the  open- 
ing days  of  the  war  public  opinion  had  greatly  changed  in 
the  state,  so  much  so  that  its  representatives  in  Congress, 
in  January,  1863,  had  raised  the  question  of  compensatory 
emancipation  in  its  behalf.  A  year  later  public  opinion 
had  advanced  so  far  that  the  legislature  appointed  the 
6tli  of  April  as  the  day  when  the  people  should  decide  the 
question  of  choosing  a  constitutional  convention,  the  issue 
being  plainly  understood,  and  the  question  being  answered 
by  the  election  of  sixty-one  delegates,  —  out  of  ninety-six, 
—  known  to  be  in  favor  of  emancipation.-  Three  weeks 
later  the  delegates  met  at  x^nnapolis  and  began  a  discus- 
sion of  public  issues  which  ran  on  until  November.  The 
whole  constitutional  history  of  the  Union  was  reviewed. 
Unlike  Missouri,  Arkansas,  and  Louisiana  in  1864,  Mary- 
land was  not  under  military  pressure  of  any  kind.  It 
therefore  discussed  the  question  of  emancipation  with  a 
freedom  and  completeness  not  elsewhere  recorded.  The 
argument  of  the  emancipationists  was  economic  ;  but  that 
of  the  pro-slavery  members  was  legal  and,  as  they  believed, 
strictly  constitutional.  To  emancipate  the  slaves  of  Mary- 
land, said  the  opposition,  would  violate  the  rights  of  prop- 
erty and  set  free  a  multitude  wholly  unfit  to  take  care  of 
themselves.  At  last,  on  the  24th  of  June,  the  vote  was 
reached,  and  slavery  in  Maryland  was  abolished  by  a  vote 
of  nearly  two  to  one ;  and  in  October  the  new  constitution 

1  Louisiana  Constitution,  1864;  Title  III,  Article  XV. 

2  See  Debates  of  the  Convention,  April  27,  1864-September  6,  1864; 
3  volumes. 


THE   UNITED    STATES  221 

was  ratified,  though  by  a  majority  of  only  three  hundred 
and  seventy-five  votes.  These  epoch-making  votes  were 
cast  by  the  Maryland  soldiers  in  the  various  national 
camps. 

While  Maryland  was  discussing  emancipation,  the 
people  of  the  territory  of  Nevada  were  engaged  in  fram- 
ing a  state  constitution.^  The  territory  had  been  organized 
scarcely  three  years. ^  It  was  needed  as  a  state  in  1864, 
much  as  West  Virginia  had  been  needed  to  help  strengthen 
the  national  government  in  1863.  A  convention  assembled 
on  the  4th  of  July,  1864.  The  majority  of  the  members 
were  natives  of  free  states,  and  nearly  one-third  of  them 
were  natives  of  New  York.  Oregon  had  been  organized 
as  free  soil,  and  California  had  been  admitted  as  a  free 
state.  The  prohibition  of  slavery,  therefore,  was  to  be 
expected  in  Nevada,  and  the  prohibitory  clause  in  the  con- 
stitution easily  passed  without  objection.  But  the  dele- 
gates were  not  merely  hostile  to  slavery  ;  they  believed  that 
the  paramount  allegiance  of  every  citizen  was  due  to  the 
federal  government.  This  doctrine  had  come  up  in  the 
Maryland  convention  and  had  been  approved  and  em- 
bodied in  the  constitution  of  that  state.  But  the  delegates 
of  Nevada  carried  the  doctrine  further,  and  declared  in 
their  bill  of  rights  that  the  Constitution  of  the  United 
States  confers  full  power  on  the  federal  government  to 
maintain  and  to  perpetuate  its  existence,  and  that  if  within 
any  portion  of  a  state  the  people  should  attempt  to  secede 
from  the  federal  Union  or  forcibly  to  resist  the  execution 
of  its  laws,  the  federal  government,  by  warrant  of  the 
Constitution,  might  employ  armed  force  in  compelling 
obedience  to  its  authority.  This  doctrine  had  been  adopted 
by  a  constitutional  convention  in  Nevada  the  preceding 
year,  but  the  language  was  now  slightly  modified  to  ex- 
press the  idea  that  the  federal  government  must  operate 
within  its  constitutional  powers,  though  the  right  of  co- 
ercion was  maintained.^    But  no  delegate  advocated  negro 

1  Constitutional  Convention,  Debates  and  Proceedings,  July  4-27, 
1864. 

2  March  2,  1861. 

8  Nevada  constitution,  1864;  Article  I,  section  2.  Debates  of  the 
Convention,  p.  53. 


222     A    CONSTITUTIONAL    HISTORY    OF 

suffrage,  though  the  idea  was  less  novel  than  that  of  para- 
mount" allegiance  to  the  general  government,  or  its  right 
to  coerce  a  state.  The  Nevada  constitution  was  ratified  by 
the  people,  and  on  the  last  day  of  October  the  state  was 
admitted  into  the  Union  by  proclamation  of  the  President. 
It  was  the  twenty-sixth  to  forbid  slavery. 

Tennessee  was  soon  added  to  the  free  list.  It  consisted 
of  two  parts,  an  eastern  and  a  western.  The  eastern  was 
loyal.  The  state  was  not  included  in  the  emancipation 
proclamation.  During  1863  and  1864  the  portion  of  the 
state  under  the  control  of  loyal  citizens  and  national  troops 
enlarged  until  it  included  nearly  the  whole  state.  Andrew 
Johnson,  the  military  governor,  declared  in  favor  of  eman- 
cipation. But  Tennessee  was  in  a  condition  of  great  polit- 
ical confusion.  The  party  in  power,  for  the  time  being, 
was  loyal  or  disloyal,  according  to  the  successes  of  the 
national  or  of  the  Confederate  armies.  Finally,  on  the  9th 
of  January,  1864,  a  convention,  which  at  best  was  a  rev- 
olutionary body,  assembled  at  Nashville,  and  on  the  14th 
adopted  a  constitutional  amendment  abolishing  slavery. 
The  amendment  was  ratified  by  popular  vote. 

Thus,  while  Missouri  was  feeling  its  way  to  emancipa- 
tion, Arkansas,  Louisiana,  Virginia,  Maryland,  and  Ten- 
nessee, abolished  the  institution,  and  two  new  states,  West 
Virginia  and  Nevada,  were  added  to  the  Union,  the  one 
adopting  gradual  emancipation,  the  other  prohibiting 
slavery.  An  amendment  to  the  national  Constitution  must 
be  ratified  by  three-fourths  of  the  states.  Tennessee  was 
the  twenty-seventh  state  to  prohibit  slavery,  and  made 
up  the  number  necessary  to  ratify  an  amendment  abolish- 
ing the  institution.  While  Missouri  and  other  states  had 
been  adopting  emancipation.  Congress  had  been  consider- 
ing an  abolition  amendment.  What  reception  would  it  be 
given  by  the  people  of  America?  Would  they  so  amend 
the  plan  of  the  national  government  as  to  abolish  slavery? 
Could  the  Union  and  slavery  be  preserved  ? 

There  was  no  escaping  the  issue.  Events  compelled 
decision.  The  threats,  the  warnings,  the  prophecies 
uttered  during  the  years  of  compromise  were  now  realized. 
An  era  of  acrid  discussion  had  been  followed  by  civil  war. 
The  rights  of  free  labor  had  refused  longer  to  be  mis- 


THE    UNITED    STATES  223 

managed.  A  true  national  economy  compelled  the  abo- 
lition of  a  false  sectional  economy.  There  were  no  new 
principles  brought  to  light;  antagonistic  systems  had 
come  to  deadly  conflict.  The  abolition  of  slavery  meant 
the  recognition  of  the  rights  of  labor.  Free,  honorable 
labor  was  the  chief  corner-stone  of  national  life.  The 
natural  condition  of  labor  was  not  that  of  slavery. 

Thus,  behind  the  principles  which  the  Fathers  laid  down 
in  the  eighteenth  century,  the  American  people  were  learn- 
ing, by  terrible  experience,  that  there  lies  economic  neces- 
sity. Equality  of  condition,  as  has  often  been  pointed  out 
by  thoughtful  men,  and  by  none  more  forcibly  than  by 
De  Tocqueville,  in  his  classic  work  on  "  Democracy  in 
America,"  —  published  six  years  before  the  compromise 
of  1850,  —  equality  of  condition  is  the  fundamental  con- 
dition demanded  by  modern  civilization,  and  it  has  been 
the  destiny  of  the  human  race  since  the  beginnings  of  its 
history. 

The  mighty  law  of  economy  was  shaping  government 
in  America,  in  spite  of  constitutions,  statutes,  and  judicial 
decisions.  How  vain,  how  feeble,  appear  these  man-made 
barriers  to  its  progress.  And  the  equality  of  condition 
which  was  to  be  won  in  the  battles  of  civil  war  was 
equality  of  industrial  condition:   the  rights  of  free  labor. 

Unfortunately  for  America,  political  and  industrial 
rights  were  confused,  and  industrial  rights  were  recog- 
nized only  so  far  as  they  could  be  expressed  in  political 
form.  Seemingly,  the  American  people  had  developed 
little  capacity  as  yet  to  know  that  the  foundation  of  a 
stable  popular  government  is  the  universal  recognition 
of  the  right  of  free  labor.  But  there  were  seers  and  wise 
men  who  saw  truly.  Foremost  among  these  was  Abraham 
Lincoln.  Running  through  his  state  papers,  and  his  public 
and  private  utterances,  is  the  solemn  recognition  of  the 
rights  of  labor.  "  Fondly  do  we  hope  —  fervently  do  we 
pray  —  that  this  mighty  scourge  of  war  may  speedily  pass 
away.  Yet  if  God  wills  that  it  continue  until  all  the  wealth 
piled  by  the  bondman's  two  hundred  and  fifty  years  of  un- 
requited toil  shall  be  sunk,  and  till  every  drop  of  blood 
drawn  with  the  lash  shall  be  paid  by  another  drawn  with 
the  sword,  as  was  said  three  thousand  years  ago,  so  still  it 


224     A    CONSTITUTIONAL    HISTORY    OF 

must  be  said,  '  The  judgments  of  the  Lord  are  true  and 
righteous  altogether.'  "  ^ 

This  man  "  who  by  the  benignant  favor  of  republican 
institutions  rose  from  humble  beginnings  to  the  heights 
of  power  and  fame,"^  exemplified  in  no  uncertain  way  and 
voiced  in  no  uncertain  language  the  conviction  which  the 
American  people  were  slow  of  heart  in  believing,  —  that 
the  evolution  of  government  discloses  a  moral  order,  the 
determining  force  in  which  is  the  right  of  all  men  to 
freedom  in  labor.  Popular  government  depends  for  its 
beneficence  and  perpetuity  on  the  rights  of  requited  toil. 

In  its  political  application  this  essential  right  took  the 
form  of  emancipation  in  America  during  the  period  of 
the  civil  war.  State  sovereignty,  protective  tariffs,  internal 
improvements,  the  acquisition  of  new  territory  paled  in 
comparison.  But  the  reformation  —  and  it  is  a  sorrowful 
comment  on  human  government,  that  the  abolition  of 
slavery  must  come  as  a  reformation  —  lay  with  the  people 
themselves.  Missouri  touched  the  vital  spot  when  she  con- 
fessed that  the  alternative  was  emancipation  or  industrial 
stagnation.  There  was  a  higher,  a  moral  law ;  and  men 
and  women  were  not  wanting  who  confessed  that  slavery 
meant  national  degradation. 

But  great  political  and  industrial  changes  proceed  by 
a  program  of  accepted  precedents,  or  by  innovations 
which  shake  the  foundations  of  society.  The  re-con- 
structive process  initiated  by  the  civil  war  may  be  best 
understood  if  its  examination  is  approached  through 
avenues  laid  out  by  the  organizers  and  administrators  in 
public  affairs. 

The  principles  of  popular  government  in  America,  as 
laid  down  by  courts  of  law  and  the  constitutions  of  the 
commonwealths  from  the  opening  of  the  nineteenth  cen- 
tury to  the  time  of  the  civil  war,  if  properly  examined, 
enable  us  to  understand  more  intimately  the  significance 
of  the  phase  through  which  popular  government  in 
America  was  passing  from   1850  to   1865. 

'  Second  Inaugural,  March  4,  1865;   Works,  vol.  ii,  p.  657. 
2  Resolutions    of    Senators    and   Representatives,   April    17,    1865; 
Richardson,  vol.  vi,  p.  290. 


THE   UNITED    STATES  225 


CHAPTER   X 

THE    COMMONWEALTHS 

From  the  opening  of  the  nineteenth  century  to  the  civil 
war  the  Union  increased  from  sixteen  to  thirty-four  states, 
which  in  the  aggregate  adopted  thirty-seven  new  constitu- 
tions and  above  one  hundred  and  fifty  amendments/  —  an 
activity  indicative  of  poHtical  ferment  and  social  unrest. 
The  large  events  were  the  acquisition  of  the  Louisiana 
country,^  the  Floridas,^  Texas,*  California,^  and  Oregon, ** 
and  the  extension  of  civil  government,  state  or  territorial, 
over  the  entire  public  domain/  It  was  the  period  of  the 
acquisition  and  pioneer  settlement  of  the  West. 

The  movements  of  population — immigration  and  migra- 
tion —  largely  determined  the  character  of  the  civil  insti- 
tutions set  up  in  the  new  states.  New  England  and  the 
Middle  States  overflowed  into  the  old  Northwest  and 
across  the  Mississippi  valley  into  Iowa,  Minnesota,  Cali- 
fornia, and  Oregon,  and  the  new  constitutions  of  the  West, 
in  states  above  the  latitude  36°  30',  perpetuated  the  dis- 
tinguishing provisions  of  the  organic  laws  of  the  free 
states. 

South  of  the  Missouri  line,  36°  30',  Arkansas,  Louis- 
iana, and  Texas  perpetuated  the  distinguishing  provisions 
of  the  constitutions  of  the  slave-holding  states,  and  it  was 
expected  that  by  subdivision  Texas  would  develop  into 
five  commonwealths.  But  the  line  of  cleavage  between 
the  political  institutions  and  sentiments  of  the  people  of 
the  North  and  of  the  South  was  not  fully  disclosed  by  the 
arbitrary  Missouri  line.  The  confluence  of  the  two  streams 
of  population  into  the  West,  plainly  traceable  in  the 
Ohio  valley,   as  in  southern  Ohio,   Indiana,   Illinois,   in 

1  See  p.  301,  note  2.  2  1803.  8  jSig. 

*  1845.         6  1848.         6  ,792-1846.         7  1850. 

IS 


226     A    CONSTITUTIONAL   HISTORY    OF 

Kansas,  and  in  the  composite  population  on  the  Pacific 
coast,  resulted  in  the  growth  of  antagonistic  ideas:  pro- 
slavery  and  anti-slavery,  which  marked  this  central  zone  as 
one  of  political  agitation.  In  spirit  and  practical  admin- 
istration the  people  of  this  middle  zone  were  in  sym- 
pathy with  southern  rather  than  with  northern  ideas  of 
government. 

The  new  constitutions  of  old  states  and  the  constitutions 
of  new  ones,^  adopted  during  this  period  of  sixty  years, 
repeated  the  eighteenth  century  bills  of  rights,  but  with 
significant  though  few  additions.  New  states  at  the 
North  included  in  their  bills  of  rights  the  anti-slavery 
clause  of  the  ordinance  of  1787.  The  new  South  incor- 
porated in  its  organic  law  the  declaration  of  the  right  of 
property  in  man.^  In  theory,  at  least  as  far  as  discernible 
from  the  bills  of  rights,  the  eighteenth  century  ideas  of 
government  still  prevailed ;  but  an  examination  of  the 
articles  on  the  legislative,  the  executive,  and  the  judiciary, 
and  of  the  distinctively  new  provisions  on  administration 
easily  lead  one  to  conclude  that  democracy  in  America 
was  changing  its  ideas  and  ideals. 

All  the  states  now  had  the  bicameral  system,  Vermont 
falling  into  line  in  1836.  But  the  traditional  difference  be- 
tween the  two  Houses,  —  the  exclusive  right  of  the  lower 
to  originate  money  bills,  —  was  passing  away,  and  the 
state  Senate  was  exercising  the  privilege  with  the  House. 
Even  more  notable  was  the  appearance,  in  new  constitu- 
tions, in  all  quarters  of  the  Union,  of  provisions  limiting 
the  power  of  the  legislature,  and  chiefly  its  power  to 
create  corporations.-''  The  panic  of  1837  ^^d  to  a  revision 
of  legislative  authority  to  establish  banks.  The  constitu- 
tions of  New  York  and  Iowa,  of  1846,  illustrate  the  con- 
servative spirit  of  the  times,  and  the  early  attempt  of  the 
people  to  protect  themselves  and  the  states  from  bank- 
ruptcy. With  the  development  of  the  public  land  system, 
after  1834,  came  the  provision  common  to  the  constitu- 
tions of  western  states,  regulating  land  grants  for  educa- 
tional purposes,   and  by    i860  these  provisions  in   some 

1  For  the  list  and  chronological  order  of  new  constitutions,  see  the 
note  to  chap,  xiii,  pp.  301-302. 

2  Kentiickv  constitution,  1S49. 

8  New  York,  1846,  and  later  constitutions  in  other  states. 


THE   UNITED    STATES  227 

states  had  expanded  into  an  elaborate  article.  The  care 
of  the  free  public  schools  was  made  a  solemn  obligation 
of  legislatures.  Indiana,  Illinois,  and  Michigan  illustrate 
the  educational  effort  which  as  time  has  passed  has  become 
characteristic  of  the  West.^ 

Another  sign  of  change  was  the  gradual  adoption  of 
specific  limitations  of  legislatures :  the  beginning  of  the 
revolt  against  special  legislation.  Acts  of  assembly  were 
still  "  public  "  or  "  private,"  under  which  latter  title  legis- 
latures granted  special  privileges  to  individuals,  often  to 
the  detriment  of  the  public :  changed  local  boundaries ; 
granted  divorces ;  manipulated  county,  township  and  city 
politics ;  created  corporations ;  exempted  property  from 
taxation,  and,  in  general,  passed  innumerable  acts  con- 
fusing to  justice  and  in  violation  of  economic  principles  of 
government.  The  development  of  canals  and  railroads 
was  swift  and  extended,  and  legislatures  granted  fran- 
chises, and  voted  state  aid,  with  dangerous  liberality.  The 
industrial  evolution  which  distinguishes  the  period  had 
its  counterpart  in  questionable  legislation,  and  it  was  in 
remedy  of  much  of  this  legislation  that  new  constitutions, 
and  amendment  of  old  ones,  were  made.'  The  people 
were  learning  by  hard  experience  the  peril  of  enthroning 
legislatures  with  unlimited  powers,  such  as  the  early  consti- 
tutions had  granted.  For  the  first  time  constitutions  fixed 
the  limit  of  state  debts  by  naming  the  amount  beyond 
which  legislatures  should  not  pledge  public  credit.^ 

Political  parties  appeared  and  disappeared,  divided  as 
was  public  sentiment,  on  the  subject  of  reform.  An  ele- 
ment of  no  slight  importance  was  the  apportionment  of 
representation :  the  division  of  a  state  into  senatorial  and 
assembly  districts  so  as  to  secure  the  equities  of  repre- 
sentation. Every  constitutional  convention  struggled 
with  the  problem,  and  put  a  solution  of  it  into  a  clause  of 
the  Constitution.  The  single  district  system  as  worked  out 
in  Michigan,  and  incorporated  in  its  constitution  of  1850, 

1  Constitutions,  Ohio,  1S03,  1851  ;  Indiana,  1816,  1851  ;  Illinois,  1818, 
1848;  Michigan.  1836,  1850. 

^  See  particularly  the  western  constitutions,  1835-1860. 

3  See  the  Kentucky  constitution  of  1849,  ^"d  the  debates  on  state 
debts  in  the  convention  of  that  year. 


228     A    CONSTITUTIONAL    HISTORY    OF 

was  one  of  the  notable  results  of  the  struggle.  But  the 
constitutions  present,  in  the  aggregate,  a  rather  confused 
mass  of  unsuccessful  effort  to  apportion  representation 
and  maintain  an  equitable  ratio.^  No  constitution  proved 
a  preventive  of  a  gerrymander.  The  elaborate  provisions 
for  a  state  census,  for  utilizing  the  federal  census,  for 
regulating  the  area  of  counties,  for  equalizing  urban  and 
rural  representation,  and  for  redistricting  the  state  at 
fixed  periods  of  time,  remain  an  index  to  much  of  the 
thought  of  the  period. 

Property  and  religious  qualifications  quite  disappeared  ;^ 
the  vestiges  remaining  having  slight  practical  importance. 
The  period  of  required  residence  in  the  state,  for  voters 
and  public  officials  was  shortened,  and  a  new  requirement 
—  United  States  citizenship  —  was  imposed  in  all  the 
states,  save  in  one  or  two  of  the  original  thirteen.  This 
constitutional  recognition  of  the  national  government  was 
consequent  upon  the  admission  of  new  commonwealths 
by  Congress.  It  signified  that  these  states  were  the  crea- 
tion, not  the  creator,  of  the  United  States :  a  very  different 
basis  of  federal  relations  than  that  attributed  by  believers 
in  state  sovereignty,  to  the  states  in  the  Union,  old  or  new. 
The  concept  of  nationality  was  evolving  in  the  public  mind. 

Of  all  the  constitutions  made  during  the  period,  that  of 
Wisconsin,  of  1848,  was  most  liberal  and  complete,  if 
tested  by  the  principles  which  underlie  American  civil 
institutions.  It  granted  manhood  suffrage,  irrespective 
of  race,  and  was  the  only  organic  law  in  America  which 
allowed  an  Indian  to  vote.  Its  concept  of  the  functions 
of  the  state ;  its  organization  of  the  legislature ;  its  pro- 
visions for  education ;  for  the  safeguarding  of  public 
funds ;  for  the  equities  of  representation ;  for  the  per- 
formance of  executive  functions  and  for  the  administra- 
tion of  justice,  mark  it  as  a  high  type,  —  probably  the 
highest  type  of  constitutional  work  done  by  the  people  of 
a  state  during  the  period.  Its  continuation  in  force  tends 
to  confirm  this  estimate  of  its  character. 

1  Ohio,  1851,  adopted  an  elaborate  method  of  securing  proportional 
representation. 

2  Except  in  Delaware,  property  qualifications  for  state  senators,  con- 
stitution of  1831  ;  in  Connecticut,  a  freehold;  in  New  York,  constitution 
of  1S46,  for  negro  electors ;  North  Carolina,  1835. 


THE    UNITED    STATES  229 

One  cause  of  the  limitation  of  legislative  powers  was 
the  sorry  experience  of  the  people  with  lotteries,  which 
in  multitudinous  form  were  legalized  by  legislatures 
during  the  early  years  of  the  century.  But  the  lottery  was 
hard  to  kill,  and  the  silence  of  a  constitution  regarding 
it  was  evidence  too  often  that  the  evil  might  be  tolerated.^ 

It  was  one  limitation  of  legislative  power — the  clause  in 
the  Missouri  constitution  of  1820,  respecting  free  persons 
of  color  —  which  precipitated  a  discussion  that,  over- 
spreading the  country,  fixed  public  sentiment,  and  deter- 
mined an  essential  part  of  the  Missouri  compromise.^  In 
1848,  the  people  of  Illinois  adopted  a  constitution  which 
contained  a  clause  almost  identical  in  language  with  that 
in  the  Missouri  constitution  of  1820,  excluding  free 
negroes  and  mulattoes  from  the  state,  and  it  remained  a 
part  of  the  organic  law  of  the  state  till  1870.  But  the 
Illinois  provision  attracted  little  or  no  attention,  and  pro- 
voked no  controversy.  Public  sentiment  outside  of  the 
states  along  the  Canadian  frontier  —  the  extreme  northern 
states  —  was  hostile  to  the  negro,  slave  or  free.  He  was 
excluded  by  the  state  constitution  from  enrolment  in 
the  militia,  and,  except  in  five  northern  states,^  was  ex- 
cluded from  the  suffrage.*  But  government  in  all  the 
states  was  distinctively  the  white  man's.  There  were  no 
officials  of  the  negro  race. 

In  respect  to  this  race,  the  constitutions  adopted  between 
the  years  1800  and  i860  differed  notably  from  those 
adopted  during  the  eighteenth  century.  The  earlier  in- 
struments are  silent  respecting  the  negro;  the  later  ones 
explicitly  discriminate  against  him.  The  unwritten  con- 
stitution, public  sentiment,  and  the  actual  administration 
of  government,  were  hostile  to  the  negro,  slave  or  free. 
He  was  a  man  without  a  country.  Anti-slavery  agitation 
set  in  early  in  the  century,  and  a  powerful  political  party 

^  See  Constitutions  of  Louisiana,  1812,  1845,  1852,  and  compare  with 
those  of  Illinois,  1S48;  Wisconsin,  1848;  Michigan,  1835,  1850;  Tennes- 
see, 1834,  et  111. 

^  See  pp.  139-150. 

3  New  Hampshire,  Vermont,  Massachusetts,  New  York,  Wisconsin. 

*  For  a  detailed  account  of  the  Constitutional  Status  of  the  free 
negro,  see  the  author's  "Constitutional  History  of  the  American  People, 
1776-1850,"  vol.  i,  chap.  xii. 


230     A    CONSTITUTIONAL    HISTORY    OF 

whose  creed  was  the  exclusion  of  slavery  from  the  terri- 
tories, obtained  control  of  national  affairs  in  i860;  yet 
little  evidence  of  the  political  agitations  which  grew  out 
of  slavery  can  be  found  in  the  state  constitutions.  Even 
the  most  liberal  of  these  recognized  the  superiority  and 
supremacy  of  the  white  race.  But  a  period  of  agitation, 
debate,  political  ferment,  and  even  of  civil  war  may  pre- 
cede a  revolution  in  public  sentiment.  The  effects  of  anti- 
slavery  agitation,  it  might  be  expected,  would  be  traceable 
in  later  constitutions,  adopted  after  the  great  issues  were 
settled.  Then  the  organic  law  would  respond  to  new  con- 
ditions. The  years  from  1800  to  i860  were  years  of 
agitation  which  culminated  in  civil  war.  We  shall  see, 
later,  what  changes  this  war  wrought  in  the  organic  law 
of  the  states.^ 

Americans  were  learning,  to  their  sorrow,  that  the  mere 
mechanism  of  civil  organism  is  not  enough  to  guide  and 
guard  the  welfare  of  the  state.  They  were  losing  con- 
fidence in  the  theory  of  "  checks  and  balances  "  which 
had  appealed  so  seductively  to  the  Fathers.  Legisla- 
tures had  multiplied  foolish  and  evil  laws,  and  the  people 
were  now  devising  checks  and  balances  for  the  legislature. 
Clearly  there  were  things  which  no  legislature  should  be 
suffered  to  do ;  notably,  to  over-reach  the  credit  of  the  state 
in  support  of  so-called  internal  improvements ;  to  char- 
ter wild-cat  banks  and  permit  issues  of  fiat  money ;  to 
enact  innumerable  and  contradictory  private  acts ;  and  to 
gerrymander  the  state  at  the  will  of  the  party  in  power.^ 
These  and  other  offences  legislatures  had  repeatedly  com- 
mitted ;  therefore  they  should  be  shorn  of  much  of  their 
power,  and  be  compelled  to  act  the  wise  law-maker. 

To  this  end  prohibitory  clauses  were  inserted  in  new 
constitutions,  and  in  amendments  of  old  ones ;  the  era 
of  the  restriction  of  legislative  power  began.^  As  an 
aid  in  reform,  the  power  of  the  executive  was  utilized. 
The  old  distrust  of  governors  was  vanishing,  and  their 
civil  value  was  appearing.  Military  notions  which  largely 
dictated  the  organic  laws  of  the  eighteenth  century  were 

1  .See  chap.  xiii.  2  Kentucky,  1S49 

"   Western  state  constitutions,  1S46-1S57. 


THE    UNITED    STATES  231 

passing,  and  governors  should  be  entrusted  with  the  care 
of  a  respectable  portion  of  the  civil  estate.  One  man,  the 
governor,  could  be  made  responsible;  many  men,  the 
legislature,  had  escaped  responsibility.  The  new  consti- 
tutions speedily  expressed  the  conversion  of  the  public  to 
the  new  theory  of  executive  place  and  power,  and  hence- 
forth governors  in  America  should  participate  in  civil 
affairs  by  the  exercise  of  the  veto  power,  and  by  filling 
offices  hitherto  filled  by  the  legislature ;  and  the  executive 
term  should  be  lengthened  so  as  to  enable  the  head  of  the 
state  to  establish  and  carry  out  his  own  policy.^  Hope 
and  confidence  went  further ;  as  was  expressed  in  the 
substantial  increase  of  governors'  salaries,  in  the  erection 
and  furnishing  of  executive  mansions,  and  in  modest  ap- 
propriations for  the  miscellaneous  expenses  of  the  execu- 
tive department.  But  the  substantial  change  was  in  the 
power  of  the  governor ;  he  was  now  a  civil  as  well  as  a 
military  factor  in  the  business  of  the  state. 

The  effect  of  this  change  was  undoubtedly  beneficial 
to  the  states,  one  evidence  of  which  is  the  high  charac- 
ters who  filled  the  executive  office.  For  forty  years  of  the 
sixty  prior  to  the  civil  war,  the  Presidents  and  Vice-presi- 
dents were  ex-governors.  Notable  among  them  were 
Madison,  Monroe,  Van  Buren,  Tyler,  Gerry,  and  Tomp- 
kins. Scarcely  less  famed  were  Edward  Everett,  Seward, 
Marcy,  Silas  Wright,  Oliver  Wolcott,  De  Witt  Clinton, 
Hamilton  Fish,  Robert  Y.  Hayne,  Thomas  Corwin,  and 
Levi  Lincoln,  each  of  whom  had  served  his  state  as 
governor. 

The  middle  and  later  years  of  the  period  give  date  to 
the  founding,  by  the  states,  of  many  charitable  institu- 
tions, such  as  schools  for  the  deaf,  the  dumb,  the  blind ; 
asylums  for  the  insane,  and  reformatories  for  criminals. 
Into  the  hands  of  governors  was  given  the  official  care 
of  these  establishments,  for  the  legislatures  could  not  be 
trusted  with  the  responsibility.  Legislative  partiality 
would  fill  these  institutions  with  incompetent  officials. 
The  governor  would  appoint  capable  men.  The  appoint- 
ing power  of  the  executive  began,  and  that  notable  change 

1  Constitutions,  1850-1860. 


232     A    CONSTITUTIONAL    HISTORY    OF 

in  American  civil  affairs  which  tends  to  place  the  execu- 
tive nearer  the  centre  of  our  civil  system  may  be  traced 
through  the  constitutions  adopted  after  1837. 

In  the  stite  judicial  systems  the  most  notable  change 
was  the  substitution  of  popular  election  for  executive  ap- 
pointment. Democracy  demanded  this,  and  with  no 
uncertain  voice  in  the  newer  states.  Every  constitutional 
convention  debated  the  relative  merits  of  the  two  methods 
of  securing  judges,  and  the  discussion  in  Kentucky,  in 
1849,  remains  a  classic  on  the  subject.  As  judicial  busi- 
ness increased,  the  problem  arose  how  best  to  perform  it ; 
whether  by  establishing  new  courts  or  by  increasing  the 
membership  of  the  old  ones.  But  democracy  which  is 
voracious  for  offices  made  a  short  solution  by  "  branch- 
ing the  courts,"  as  it  was  called  in  some  quarters,  and 
thus  finding  new  rewards  for  faithful  politicians. 

In  spite  of  the  unreasonableness  of  democracy  and  the 
instability  of  the  public  mind,  the  courts  suffered  less  than 
the  conservative  citizen  feared  they  would  suffer.  The 
federal  judiciary,  firmly  seated  in  its  constitutional  rights, 
was  a  check  and  balance  in  public  affairs,  and  established 
a  standard  which  even  politicians  wearing  the  state  ermine 
could  not  wholly  ignore.  In  spite  of  popular  elections, 
short  terms,  and  low  salaries,  the  state  judges,  clothed 
with  brief  responsibility,  made  records  which  were  not 
wholly  discreditable.  Legal  procedure  and  practice 
steadily  became  simpler  than  in  the  eighteenth  century. 
Earnest  efforts  at  codification  were  made,  as  in  Michigan 
and  New  York,  a  reform  which  the  maze  and  multiplicity 
of  the  laws  compelled.  The  brief  provisions  on  codifica- 
tion suggest,  however,  that  revision  rather  than  codifica- 
tion was  understood :  as  is  attested  by  the  volumes  of 
revised  statutes  which  were  issued  by  the  state  printers. 

Having  boldly  transformed  the  court  into  an  elective 
body,  democracy  easily  laid  its  hands  on  subordinate  court 
offices,  and  long  before  the  days  of  the  civil  war,  these 
offices  had  changed  from  appointive  to  elective  offices, 
according  to  the  will  of  the  dominant  party.  But  in  the 
old  states  the  change  from  the  appointive  to  the  elective 
system  was  more  gradual  and  less  complete  than  in  the 
West. 


THE    UNITED    STATES  233 

A  notable  change  in  the  judicial  systems  was  the  in- 
crease of  jurisdiction  in  district  and  county  courts,  inci- 
dent to  the  establishing  of  new  courts.  The  constitutions 
not  infrequently  specified  the  monetary  limit  of  the  juris- 
diction, as  in  Georgia,^  Mississippi,-  Alabama,^  Louis- 
iana,* lowa,^  and  Michigan."  The  states  of  the  South 
made  fewer  changes  in  their  judicial  systems  than  did 
those  of  the  North.  The  South  did  not  hasten  to  adopt 
the  elective  system,  nor  to  multiply  courts,  nor  to  shorten 
judicial  terms,  nor  to  decrease  the  compensation  of 
judges.  Michigan,  in  1850,  by  its  constitution,  fixed  the 
salary  of  its  circuit  judges  at  $1500;  Louisiana  at  this 
time  paid  $5500."  The  southern  and  eastern  bench  and 
bar  enrolled  men  of  power  and  brilliancy  unsurpassed 
in  the  annals  of  other  portions  of  the  Union  in  which  the 
judicial  innovations  of  the  times  were  more  hastily  made. 
With  the  spread  of  these  innovations,  there  went  a  pop- 
ular disregard  of  the  courts.  The  ancient  sentiment  of 
respect  for  the  ermine  faded  away  when  the  ermine  was 
worn  for  a  day  by  mere  politicians  not  "  learned  "  in  the 
law.  Much  of  the  disrespect  for  courts,  which  character- 
izes the  present  time,  is  the  consequence  of  changes  and 
innovations  in  the  judicial  systems  of  the  state,  made  be- 
fore the  civil  war.  One  evidence  of  this  is  the  different 
estimation  in  which  Americans  now  hold  the  state  and 
the  federal  courts. 

It  is  in  a  new  field,  however,  that  the  organic  laws  made 
during  these  sixty  years  indicate  the  changes  through 
which  the  country  was  passing.  Constitutional  provisions 
respecting  public  lands,  education,  internal  improvements, 
charitable  and  reformatory  institutions,  corporations, 
banks  and  banking,  sinking  funds,  public  indebtedness, 
taxation,  and  local  government,  indicate  that  the  admin- 
istrative function  was  securing  attention  as  well  as  the 
legislative,  the  executive,  and  the  judicial  functions  of 
the  state.  Seldom,  as  yet,  did  a  constitution  classify 
provisions  under  an  administrative  title,  but  distributed 
them  in  a  confusing  way,   under  the  legislative  or  the 

1  1812.  2  1817^  1832.  3  1819.  4  1845. 

*  1846.  6  18  so.  7  Constitution,  1845. 


234     A    CONSTITUTIONAL   HISTORY    OF 

executive,  or  simply  grouped  them  in  miscellaneous  mass 
at  the  end.  But  the  beginnings  of  the  administrative  de- 
partment were  made.  The  theories  and  dogmas  set  forth 
in  the  first  constitutions  had  proved  too  vague  and  uncer- 
tain guides,  and  explicit  requirements  were  now  inserted. 
Local  and  state  indebtedness  above  a  fixed  amount  must 
not  be  created,  —  a  sharp  antithesis  to  the  general  grant  of 
power  to  legislatures  in  1776.  Thus  the  more  evident 
details  of  a  working  administrative  system  were  enu- 
merated, though  with  loose  notions  of  their  operation 
or  trend. 

The  country  was  awaking  to  industrial  life.  The  peo- 
ple were  attempting  the  first,  the  primitive  development  of 
its  resources.  State  constitutions,  like  laws,  follow  but 
never  lead  public  opinion,  and  in  consequence  are  often 
behind  the  times.  The  organic  laws  of  the  states  from 
1800  to  i860  are  an  imperfect  index  to  the  industrial 
volume  which  was  unrolling.  Rather  do  these  laws  sug- 
gest the  laborious  efiForts  of  men  to  adjust  old  theories 
to  new  conditions,  with  abundant  evidence  of  the  com- 
plexity of  the  civil  problem. 

Of  state  sovereignty  the  new  constitutions  contained  not 
one  word,  and,  save  the  constitution  of  Maine,  of  1820, 
none  recognized  the  paramount  authority  of  the  national 
government.  The  last  attempt  to  insert  the  claim  of  sov- 
ereignty in  the  organic  law  of  an  American  state  was  in 
Kansas  in  1857,  and  this  constitution  was  rejected  both 
by  Congress  and  the  people  of  the  state.  But  federal  rela- 
tions had  become  clearer  to  the  people  than  in  the  eight- 
eenth century.  In  all  new  states  public  officers  must  be 
citizens  of  the  United  States  and  must  be  inducted  into 
office  under  an  oath  of  allegiance  to  the  general  govern- 
ment. The  acquisition  of  the  vast  domain  between  the 
Mississippi  and  the  Pacific  transformed  the  United  States 
into  a  world  power,  and  as  the  West  was  settled  and  the 
resources  of  the  country  were  developed,  the  idea  of 
nationality  became  clearer  to  all  the  people.  Their 
thoughts  moved  more  readily  toward  the  capital  city, 
Washington,  and  Congress,  than  to  their  state  capitals 
and  the  legislatures.  The  President  personified  a  higher 
authority  than  that  of  governor.    The  national  courts  were 


THE   UNITED    STATES  235 

the  last  resort  in  interstate  and  federal  cases.     And  in  the 
eyes  of  the  world  the  American  people  were  a  nation. 

However  splendid  the  annals  of  a  commonwealth,  those 
annals  were  only  chapters  in  the  history  of  the  United 
States.^ 

1  For  a  detailed  account  of  the  constitutional  development  of  the 
states  during  this  period,  see  the  author's  "Constitutional  History  of 
the  American  People,  1776-1850,"  2  vols.     Harper  &  Bros.,  1S98. 


236     A    CONSTITUTIONAL   HISTORY    OF 


CHAPTER    XI 

INTERPRETATION    OF    PRINCIPLES 

Shortly  before  his  death,  President  John  Adams  told  a 
son  of  John  Marshall  that  the  appointment  of  his  father 
as  chief-justice  of  the  United  States  was  the  proudest 
act  of  his  administration.  The  appointment  was  made  on 
the  last  day  of  January,  t8oi,  and  Marshall  served  as 
chief-justice  thirty-four  years,  durino^  which  time  he  may 
be  said  to  have  enunciated  the  principles  of  the  Constitu- 
tion and  to  have  laid  judicially  the  foundations  of  Ameri- 
can organic  law.  He  was  at  the  age  of  forty-five  at  the 
time  of  his  appointment,  and  was  perhaps  surpassed  in 
mere  learning  by  several  distinguished  lawyers  then  in 
active  practice.  He  has  never  been  equalled  by  other 
American  jurists  in  his  faculty  of  discriminating  prin- 
ciples and  comprehending  moral  and  legal  rights.  Wil- 
liam Pinckney  antici}mted  the  judgment  of  posterity  when 
he  said  that  Marshall  was  born  to  be  chief- justice  of  any 
country  in  which  he  lived.  As  a  judge,  he  derived  great 
assistance  from  the  arguments  of  counsel,  and  the  supreme 
court  of  his  day  was  enlightened  by  the  learning  of  Web- 
ster, of  Ingersoll,  of  Pinckney,  and  of  Choate,  and  of  a 
large  company  of  counsellors  scarcely  less  famed.  The 
cases  which  came  before  him  may  be  said  to  have  involved 
the  fate  of  the  national  government.  In  the  disposition  of 
all  of  them  his  intellect  shone  with  a  brilliancy  which  has 
penetrated  later  times. 

There  is  no  doubt  that  Marshall's  political  opinions 
affected  his  decisions.  He  had  supported  the  Constitution 
in  the  Virginia  ratifying  convention,  and  was  recognized 
as  one  of  the  leaders  of  the  federalist  party.  He  took 
a  broad  and  philosophical  view  of  our  national  system, 
and  interpreted  it  as  one  established  for  all  time.     While 


THE   UNITED    STATES  ^2,^ 

he  was  chief-justice,  sixty-one  decisions  involving  consti- 
tutional questions  were  handed  down  by  the  court,  and 
of  these  thirty-six  were  given  by  him.  '*  A  constitution," 
said  he,  in  one  of  these  decisions,  "  is  formed  for  ages  to 
come,  and  is  destined  to  approach  immortality  as  nearly 
as  human  institutions  can  approach  it."  ^  The  immortal- 
ity which  he  bespoke  for  the  Constitution  invests  his 
decisions  interpreting  it.  Not  one  principle  which  he 
laid  down  has  ever  been  shaken,  nor  has  one  of  his 
great  decisions  been  reversed.  Entrenched  as  is  the  su- 
preme court  in  our  civil  system,  its  decisions  may  long 
run  counter  to  the  doctrines  of  a  party  in  power.  This 
was  the  case  throughout  nearly  the  whole  of  Marshall's 
judicial  service.  Between  his  decisions  and  the  doctrines 
of  the  Democratic-Republicans  there  was  nothing  in  com- 
mon, and  his  decisions  were  given,  as  it  were,  between 
two  extremes,  Jefferson  and  Jackson.  Could  the  Jeffer- 
sonians  have  aliolished  the  court  or  changed  the  life  ten- 
ure of  its  members  to  a  tenure  for  years,  it  may  well  be 
doubted  whether  the  Constitution  would  ever  have  re- 
ceived that  national  interpretation  which  distinguishes  all 
of  Marshall's  decisions. 

Perhaps  the  most  remarkable  fact  pertaining  to  these 
decisions  and  to  the  administration  of  the  general  govern- 
ment by  the  democratic  party  from  John  Adams  to  Lin- 
coln, was  the  survival  of  the  principles  as  laid  down  in 
"  The  Federalist,"  and  the  abandonment  by  the  people  of 
many  doctrines  held  by  the  democratic  party  during  its 
early  years.  The  most  famous  decision  by  Marshall's 
successor  was  in  the  Dred  Scott  case,-  and  that  was  speed- 
ily overruled  by  the  results  of  the  civil  war.  After  the 
inauguration  of  President  Lincoln,  and  the  death  of  Chief- 
Justice  Taney  in  1864,  the  national  executive  and  judiciary 
may  be  said  to  have  held  in  common  Marshall's  views 
of  the  scope,  character,  and  purpose  of  the  Constitution. 
During  the  long  period  from  the  death  of  Marshall  in 
1835  to  the  appointment  of  Chief-Justice  Chase  in  1864, 
during  which  time  the  able  and  upright  Taney  was  chief- 
justice,  the  national  executive  and  judiciary  were  in  sym- 

1  Cohens  v.  Virginia,  6  Wheaton,  377  (1821).  2  See  p.  194. 


238     A    CONSTITUTIONAL   HISTORY    OF 

pathy,  and  may  be  said  to  have  interpreted  the  Constitution 
strictly  according  to  its  letter,  and,  generally  speaking, 
according  to  the  doctrines  of  the  Jefifersonian  school. 
But  during  this  long  period  of  twenty-eight  years  the 
supreme  court  did  not  reverse  any  of  Marshall's  decisions 
excepting  indirectly  in  the  Dred  Scott  case  in  1857,  and  in 
this  it  was  rather  the  dictum  of  the  court  than  its  judicial 
opinion  which  would  neutralize  Marshall's  doctrine  of 
the  national  character  of  the  federal  government.  After 
the  civil  war  the  supreme  court  adhered  closely  to  Mar- 
shall's principles  of  construction. 

The  court,  prior  to  the  appointment  of  Marshall  as  chief- 
justice,  had  existed  eleven  years,  and  had  handed  down 
decisions  in  six  cases  in  which  the  Constitution  had  been 
construed.  The  most  important  of  these  cases  was  de- 
cided in  1794,^  when  the  court  maintained  the  supremacy 
of  the  national  government  and  the  right  of  a  citizen  to 
sue  a  state.  But  the  decision,  as  we  know,  was  soon  over- 
ruled by  the  adoption  of  the  eleventh  amendment.^  Mar- 
shall found  the  Constitution  an  almost  unknown  political 
quantity.  He  came  as  it  were  a  new  force  in  American 
government,  and  at  the  most  opportune  time. 

The  first  case  in  which  a  court  had  declared  void  a 
law  conflicting  with  the  Constitution,  had  been  decided 
in  New  Jersey  ^  only  twenty  years  before  Marshall's 
appointment,  and  the  decision  was  almost  an  innovation 
in  judicial  history.  In  1803,  he  sustained  the  principle* 
in  considering  the  right  of  one  Marbury  to  a  judicial 
office  to  which  he  had  been  appointed  by  President  Adams, 
his  appointment  having  been  confirmed  by  the  Senate,  and 
his  commission  made  out,  signed,  and  sealed,  but  not  de- 
livered. He  held  that  Marbury  had  a  legal  right  to  the 
office,  and  also  that  the  provision  of  the  judiciary  act  of 
1789.  which  purported  to  give  the  supreme  court  original 
jurisdiction  in  such  a  case,  was  not  warranted  by  the  Con- 
stitution. The  decision  was  of  the  highest  importance, 
for  it  tended  to  establish  the  principle  that  the  courts  have 

^  Chisholm  v.  Georgia,  2  Dallas,  480. 

2  See  chap,  vi,  pp.  103-106. 

8  Holmes  v.  Walton  (1781),  American  Historical  Review,  April,  1899. 

*  In  Marbury  t/.  Madison,  i  Cranch,  137  (1S03). 


THE   UNITED    STATES  239 

jurisdiction  to  determine  the  constitutionality  of  acts  which 
come  before  them  in  due  course  of  law.  Thus  a  broad 
distinction  was  laid  down  between  the  Constitution  and 
laws  that  might  be  enacted  by  Congress.  That  it  was  the 
right  and  duty  of  the  judicial  department  to  say  what  the 
law  is,  was  clearly  laid  down.  In  other  words,  the  Consti- 
tution was  the  paramount  law  of  the  land.  The  decision 
was  at  every  point  corrective  of  the  doctrine  of  the  Ken- 
tucky and  Virginia  resolutions,  and  was  in  itself  an 
augury  of  the  long  struggle  for  sovereignty  which  began 
soon  after  the  enunciation  of  the  doctrine  of  1798.  The 
decision  was  also  of  importance  because  it  established 
the  rank  of  the  judicial  department  as  co-ordinate  with 
that  of  the  executive  or  of  the  legislative.  It  declared  that 
the  Constitution  had  provided  a  tribunal  for  its  final  con- 
struction and  for  that  of  the  laws  and  treaties  of  the 
nation.^ 

Having  laid  down  the  principle  of  national  sovereignty, 
Marshall  in  later  decisions  deduced  important  corollaries 
from  it.  As  the  supreme  law  of  the  land,  it  outlined  the 
characteristic  distinction  between  the  government  of  the 
Union  and  that  of  the  states,  and  its  language  spoke  not 
only  the  authority  of  the  American  people  but  also  of  the 
states  themselves.  Therefore  the  national  government 
has  authority  to  protect  itself  and  execute  its  laws  in  all 
cases.  The  Constitution  was  formed  for  all  time ;  and 
though  its  course  cannot  always  be  tranquil  it  is  pro- 
vided with  the  means  of  self-preservation.  Being  thus 
a  national  government  in  every  respect,^  its  departments, 
—  the  executive,  legislative,  and  judiciary, — are  organ- 
ized to  act  accordingly ;  whence  it  followed  that  Congress 
must  possess  the  choice  of  means  in  making  all  laws  which 
it  might  think  necessary  and  proper,  and  the  choice  of 
means  in  carrying  into  execution  the  powers  vested  by  the 
Constitution  in  the  national  government,  or  in  any  of  its 
departments.^ 

^  Marbury  v.  Madison,  i  Cranch,  137  (1803). 

2  Contrast  this  with  the  decision  on  this  point  in  the  Dred  Scott  case 
p.  194,  ante. 

*  Cohens  v.  Virginia,  6  Wheaton,  377  (1821) ;  U.  S.  v.  Fisher,  2  Cranch 
358  (1804).     Compare  "  The  Federalist,"  No.  XVI. 


240     A    CONSTITUTIONAL    HISTORY    OF 

The  principle  involved  was  expressed  by  the  chief -jus- 
tice in  the  following  words :  "  Let  the  end  be  legitimate, 
let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  proper,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with  the 
letter  and  spirit  of  the  Constitution,  are  constitutional.''  ^ 
Because  the  national  government  possesses  sovereign 
power,  it  can  acquire  territory  either  by  conquest  or 
treaty,-  and  thus  the  constitutionality  of  the  treaty  under 
which  Louisiana  was  acquired  was  sustained.^  As  the 
nation  has  sovereign  power,  the  states  cannot,  by  taxation 
or  otherwise,  impede  its  operation,  or  in  any  way  control 
the  exercise  of  its  authority.*  The  force  of  this  decision 
is  clear.  If  the  states  could  tax  an  agent  of  the  national 
government,  they  could  destroy  that  agency;  and  if  they 
could  destroy  one  agency,  then  they  could  destroy  all. 
The  American  people,  said  Marshall,  did  not  design  to 
make  the  government  dependent  on  the  states.  Because 
of  its  own  sovereign  powers,  the  national  government 
could  regulate  the  interstate  commerce  of  the  country,  and 
all  state  laws  conflicting  with  acts  of  Congress  on  the 
subject  were  inoperative.^  From  this  principle  of  the 
power  of  the  national  government  to  regulate  commerce, 
the  supreme  court  has  never  departed." 

During  the  forty  years  following  the  adoption  of  the 
Constitution  many  public  questions  were  practically  set- 
tled by  political  interpretation,  but  others  by  very  famous 
decisions  which  the  court  handed  down.  It  held  that  it 
could  declare  an  act  of  Congress  unconstitutional,  but  that 
it  could  not  point  out  the  proper  remedy  for  defects  in 
an  act.''  This  was  the  first  great  decision  determining 
the  jurisdiction  of  the  federal  courts.     No  less  important 

1  McCullough  V.  Maryland,  4  Wheaton,  421  (1819). 

2  The  American  Insurance  Co.  v.  Canter,  4  Peters,  511  (1S2S). 

3  See  chap,  viii,  pji.  130-135. 

*  McCullough  V.  Maryland  supra  ;  Osborn  v.  The  Bank  of  the  United 
States,  9  Wheaton,  738  (1S24) ;  Weston  t^.  Charleston,  2  Peters,  449(1829). 

^  Cibbons  v.  Ogden,  9  Wheaton,  i  (1824);  Brown  v.  Maryland,  12 
Wheaton,  419  (1827);  Wilson  v.  Blackbird  Creek  Marsh  Co.,  2  Peters, 
245  (1829). 

«5  See  Kidd  v.  Pearson,  128  United  States,  16  (18S8). 

■^  Marbury  z/.  Madison,  i  Cranch,  137  (1803). 


THE    UNITED    STATES  241 

was  its  decision,  that  it  could  pronounce  a  state  law  uncon- 
stitutional, and  that  it  was  the  final  judge  of  the  validity 
of  a  treaty.^  So,  too,  the  court  defined  its  jurisdiction 
to  include  cases  in  which  a  state  was  a  party  and  in  which 
a  right  under  the  Constitution  is  involved.^  The  decisions 
also  fully  maintained  the  powers  of  Congress,  whether 
expressed  or  implied ;  thus,  it  could  establish  territorial 
governments,  or  create  a  corporation  like  the  bank,  and 
could  do  all  those  things  which  in  its  judgment  were 
necessary  and  proper  to  promote  the  general  welfare.^ 

Shortly  after  the  Missouri  compromise,  a  great  decision 
sustained  the  constitutionality  of  the  act  creating  the  bank, 
holding  that  the  general  government  could  protect  the 
bank  against  invidious  state  legislation.'*  The  character 
and  extent  of  the  powers  entrusted  to  the  executive  were 
fully  defined  soon  after  the  time  of  the  Missouri  com- 
promise, in  the  decision  that  the  President  of  the  United 
States  is  the  judge  whether  it  is  expedient  to  call  out 
the  militia  to  prevent  insurrection  or  repel  invasion.® 
The  position  of  the  states  in  the  American  system  of 
government  was  also  clearly  defined.  No  state  legislature 
might  annul  a  judgment  of  a  United  States  court "  or 
repudiate  its  own  grants,^  or  pass  legislation  violating  con- 
tracts either  private  ^  or  public.''  All  these  decisions  save 
one  ^°  were  by  Chief-Justice  Marshall.  They  clearly  and, 
as  time  proved,  permanently  defined  the  constitutional 
boundaries  of  the  great  departments  of  our  government. 

No  less  important  was  Marshall's  clear  elucidation  of 
tlie  principle  of  contracts  and  of  the  sanctity  of  their 
obligation.  Though  the  principle  is  embodied  in  the 
words,  "  no  state  shall  pass  any  law  impairing  the  obli- 

1  Martin  v.  Hunter's  Lessee,  i  Wheaton,  304  (18 16). 

2  Cohens  v.  Virginia,  6  Wheaton,  224  (1821). 

3  McCullouRh  V.  Maryland,  4  Wheaton,  316  (1819)  ;  Story's  Coirr 
mcntaries  on  the  Constitution,  pp    12^,"] ,  et  seq . 

*  Osborn  et  al.  v.  The  Bank,  9  Wheaton,  738  (1824). 
5  Martin  v.  Mott,  12  Wheaton,  19  (1827). 

^  United  States  v.  Judge  Peters,  5  Cranch,  115  (1809). 
T  Fletcher  v.  Peck,  6  Cranch,  87  (1810). 

*  Sturges  V.  Crovvninshield,  4  Wheaton,  122  (1819). 
^  Dartmouth  College  Case,  4  Wheaton,  519  (1819). 

1"  Martin  v.  Mott,  12  Wheaton,  19. 

16 


242     A    CONSTITUTIONAL    HISTORY    OF 

gation  of  contracts,"  and  it  would  seem  at  first  reading 
that  no  statement  could  be  clearer,  it  was  reserved  for 
Marshall  first  to  explore  the  recesses  of  the  principle 
and  bring  its  full  meaning  to  light.^  The  case  involving 
the  principle  of  contracts  which  attracted  the  greatest 
popular  attention  was  that  of  Dartmouth  College,  in  1819. 
It  was  of  no  more  intrinsic  importance  than  some  other 
cases  in  which  Marshall  sustained  the  principle  involved, 
but  the  brilliant  argument  of  counsel,  particularly  Web- 
ster's, and  the  wide  application  of  the  decision  to  multi- 
tudinous matters  growing  out  of  contracts,  have  rescued 
the  case  from  oblivion,  and  have  given  it  primary  impor- 
tance. The  great  learning  and  eloquence  of  the  counsel 
in  the  case,  the  character  of  the  court,  and  the  magnitude 
of  the  principle  involved,  make  the  case  the  leading  one 
in  our  constitutional  history  establishing  the  inviolability 
of  contracts. 

Though  ever  watchful  of  the  sovereign  character  and 
paramount  rights  of  the  national  government,  Marshall 
was  equally  careful  to  recognize  the  true  position  of  the 
states  and  their  relation  to  the  national  system.  He  never 
departed  from  the  principle  of  residuary  sovereignty  which 
Hamilton  had  laid  down  in  "  The  Federalist,"  and  which 
he  himself  had  advocated  in  the  Virginia  ratifying  con- 
vention. Within  its  own  sphere  a  state  is  as  supreme  as 
is  Congress  in  national  affairs.^  His  decisions  in  this  re- 
spect are  the  precedents  for  Chief-Justice  Chase's  famous 
decision  in  later  times,  that  the  Union  is  an  indestructible 
union  of  indestructible  states.^ 

In  Marshall's  time  much  was  said  of  the  strict  con- 
struction of  the  Constitution.  "  What  do  gentlemen  mean 
by  a  strict  construction?"  inquired  he,  in  one  of  his 
greatest  decisions,  rendered  in  1824.  "  If  they  contend 
only  against  that  enlarged  construction  which  would 
extend  words  beyond  their  natural  and  obvious  import, 

1  Fletcher  v.  Peck,  6  Cranch,  87  (1810);  New  Jersey  v.  Wilson,  7 
Cranch,  164  (1812);  Sturges  v.  Crowninshield,  4  Wheaton,  122  (1819); 
Ogden  V.  Saunders,  12  Wheaton,  332  (1827);  Dissenting  opinion  by 
Marshall ;  Trustees  of  Dartmouth  College  v.  Woodward,  4  Wheaton, 
518  (1819)  ;  Providence  Bank  v.  Billings,  4  Peters,  514  (1830). 

2  Barron  v.  The  Mayor,  etc.,  of  Baltimore,  7  Peters,  243  (1833). 
*  Texas  v.  White,  7  Wallace,  700  (1868) ;  see  chap.  xiii. 


THE   UNITED    STATES  243 

we  may  question  the  application  of  the  term,  but  should 
not  controvert  the  principle.  If  they  contend  for  that 
narrow  construction  which,  in  support  of  some  theory 
not  to  be  found  in  the  Constitution,  would  deny  to  the 
government  those  powers  which  the  words  of  the  grant, 
as  usually  understood,  import,  and  which  are  consistent 
with  the  general  views  and  objects  of  the  instrument,  — 
for  that  narrow  construction  which  would  cripple  the 
government  and  render  it  unequal  to  the  object  for  which 
it  is  declared  to  be  instituted,  and  which  the  powers  given 
as  fairly  understood  render  it  competent,  —  then  we  can- 
not observe  the  propriety  of  this  strict  construction,  or 
adopt  it  as  the  rule  by  which  the  Constitution  is  to  be  ex- 
pounded." ^  Marshall's  principle  of  construing  the  Con- 
stitution is  here  clearly  set  forth ;  namely,  to  render  it 
equal  to  the  objects  for  which  it  was  instituted,  according 
to  its  own  language.  This  is  identical  with  the  principle 
of  Hamilton's  well  known  political  maxim,  —  that  the 
means  must  be  adapted  to  the  end  proposed. 

It  was  very  fortunate  for  the  American  people  that  a 
man  of  Marshall's  capacity  and  character  was  at  the  head 
of  the  supreme  court  during  the  critical  period  when  the 
national  government  was  in  process  of  organization  and 
the  foundations  of  our  civil  system  were  not  known  to  the 
people.  The  country  was  no  less  fortunate  in  his  asso- 
ciates, most  of  whom,  during  nearly  the  whole  of  his 
judicial  life,  sustained  him.  Had  the  supreme  court 
leaned  toward  a  strict  construction  of  national  authority 
during  the  first  forty  years  of  our  history,  there  is  little 
doubt  that  the  general  government  would  have  been  re- 
duced to  a  mere  agency  for  the  states. 

The  closing  years  of  Marshall's  life  were  disturbed  by 
changes  in  the  court  which  threatened  to  overthrow  the 
principles  which  he  had  laid  down.  The  long  continued 
triumph  of  the  democratic  party,  beginning  with  the 
election  of  Jefferson  to  the  presidency  in  1800,  culminated 
toward  the  close  of  Marshall's  life  in  the  election  of 
Jackson,-  and  the  transformation  of  the  supreme  court 
into  a  body  of  strict  constructionists.     Nearly  all  of  Mar- 

1  Gibbons  v.  Ogden.  2  1828. 


244     A    CONSTITUTIONAL   HISTORY    OF 

shall's  associates  at  the  time  of  his  appointment  as  chief- 
justice  held  poUtical  sentiments  in  sympathy  with  his  own, 
but  their  successors,  appointed  by  democratic  presidents, 
were  men  of  a  different  pohtical  school.  Thus,  by  1830 
the  court  was  so  reorganized,  by  appointments  to  fill 
vacancies  caused  by  the  deaths  of  Marshall's  earlier  asso- 
ciates, that  he  stood  almost  alone.  The  appointment  of 
his  successor,  Roger  B.  Taney,  in  1835,  by  President 
Jackson,  completed  the  change,  and  for  the  next  twenty- 
five  years  the  court  was  as  democratic  as  under  Marshall 
it  had  been  federalist  in  its  decisions.  But  during  this 
long  period  of  Taney's  incumbency,  fewer  cases  of  the 
rank  of  those  which  Marshall  had  decided  reached  the 
court.  Though  the  principle  of  the  obligation  of  contracts 
was  sustained,  the  court  did  not  carry  it  so  far  as  Mar- 
shall carried  it  in  the  Dartmouth  College  case,  but  left 
the  state  governments  a  larger  discretionary  power.^ 

Mr.  Justice  Story,  who  ranks  with  Marshall  as  a  jurist, 
dissented  from  the  opinion  of  Chief-Justice  Taney  in  one 
of  these  cases, ^  holding  that  it  departed  from  the  principle 
laid  down  in  the  earlier  cases.  The  court  avoided  political 
questions,  at  least  during  the  earlier  years  of  Taney's 
term.  In  one  case,  the  celebrated  boundary  controversy 
between  Rhode  Island  and  Massachusetts,  the  chief-justice 
sustained  the  jurisdiction  of  the  United  States  courts  over 
such  controversies.^  In  another  case,  growing  out  of  a 
provision  in  the  constitution  of  Mississippi  of  1832,  pro- 
hibiting the  introduction  of  slaves  into  that  state  as  mer- 
chandise, or  for  sale  after  the  first  of  May  of  the  following 
year,  the  court  held  that  the  constitution  of  the  state  was 
not  self-executing,  but  required  an  act  of  the  legislature 
to  carry  it  into  effect.*  It  was  in  this  case  that  Webster 
advanced  the  argument  that  as  the  legislature  of  Missis- 
sippi had  made  no  prohibitory  law  on  the  sale  of  slaves 
introduced  into  the  state  in  a  manner  contrary  to  its 
constitution  until  1837,  therefore  the  act  was  unconstitu- 

1  In  Charles  River  Bridge  v.  Warren  Bridge,  ii  Peters,  420  (1837). 

2  Id. 

3  'I'he  State  of  Rhode  Island  v.  The  State  of  Massachusetts,  12  Peters, 
657  ;  see  also  Luther  v.  Horden,  7  Howard,  I. 

*  Groves  z'.  Slaughter,  15  Peters,  449. 


THE    UNITED    STATES  245 

tional  by  the  clause  in  the  federal  Constitution  which  gives 
to  Congress  the  power  to  regulate  commerce. 

A  case  of  great  interest  arose  in  1842/  involving  the 
constitutionality  of  the  fugitive  slave  law  of  1793,  and 
the  manner  of  its  execution.  Mr.  Justice  Story  and  the 
majority  of  the  court  held  that  the  authority  to  make  laws 
relating  to  "  fugitives  from  labor  "  rested  exclusively  in 
Congress.  This  identified  the  national  government  with 
slavery,  and  made  it  one  of  the  chief  corner-stones  in 
the  national  civil  structure.  The  chief-justice  dissented, 
holding  that  the  duty  of  executing  the  law,  and  of  pro- 
tecting the  privileges  and  immunities  of  the  citizens  of  the 
different  states  under  it,  rested  with  them.  The  political 
conclusions  of  these  decisions  were  necessarily  very  dif- 
ferent. If  the  chief -justice  was  right,  then  the  fate  of 
the  fugitive  slave  law  rested  practically  with  the  states: 
a  doctrine  very  unpalatable  to  extreme  slavocrats,  who  had 
ever  insisted  that  it  was  the  primary  duty  of  the  federal 
government  to  protect  slavery  in  all  its  interests. 

The  dissenting  opinion  of  Mr.  Justice  McLean  in  this 
case  was  quickly  utilized  by  the  Liberty  party  as  a  consti- 
tutional foundation  for  its  anti-slavery  doctrines.  The 
party  declared  its  approval  of  the  doctrine  "maintained 
by  slave-holding  jurists,  that  slavery  is  against  natural 
rights  and  strictly  local,  and  that  its  existence  and  contin- 
uance rest  on  no  'other  support  than  state  legislation,  and 
not  on  any  authority  of  Congress."  ^  There  was  a  strik- 
ing analogy  here  to  the  tactics  of  the  Democratic-Repub- 
licans in  "1796,  when  they  based  their  state  sovereignty 
doctrine  on  the  dissenting  opinion  of  Mr.  Justice  Iredell 
in  the  case,''  in  which  he  held  that  a  sovereign  state  could 
not  be  sued.  Out  of  the  claim  of  the  Liberty  party  grew 
the  doctrine  which  at  last  triumphed  in  the  election  of 
Mr.  Lincoln,  —  that  slavery  was  a  local  institution.  The 
democratic-republican  advocacy  of  the  principle  of  Ire- 
dell's dissenting  opinion  culminated  in  the  adoption  of 
the  eleventh  amendment.     The  advocacy  of  the  anti-slav- 

1  Pricg  V.  The  Commonwealth  of  Pennsylvania,  i6  Peters,  539. 

2  LibeVty  Party,  Buffalo  platform,  August  30,  1843. 

3  Chisholm  z/.  Georgia,  see  p.  103. 


246     A    CONSTITUTIONAL    HISTORY    OF 

ery  principles  of  the  Liberty  party  culminated  at  last  in  the 
adoption  of  the  thirteenth  amendment. 

Marshall  had  clearly  outlined  the  character  of  the 
national  government,  and  as  clearly,  though  less  in  detail, 
that  of  the  states.  Taney  repeatedly  emphasized  the  equal 
rights  of  the  states  and  their  sovereignty  within  their 
respective  spheres  of  action.  He  held  that  it  would  be  con- 
trary to  the  first  principles  on  which  the  Union  had  been 
formed  to  confine  these  rights  to  the  Atlantic  states,  and 
to  deny  them  to  citizens  dwelling  on  the  Great  Lakes 
or  the  navigable  streams  flowing  through  the  western 
states.^  The  great  object  of  the  framers,  he  said,  was 
to  secure  "  a  perfect  equality  in  the  rights  and  privileges 
of  the  citizens  of  the  different  states ;  not  only  in  the  laws 
of  the  general  government  but  in  the  mode  of  administer- 
ing them."  The  tone  of  Taney's  decisions  has,  unfortu- 
nately, been  taken  almost  wholly  from  his  decision  in  the 
Dred  Scott  case.='  Unquestionably  that  case,  as  events 
proved,  was  the  most  celebrated  which  came  before  him. 
The  issue  at  law  involved  no  more  than  a  question  of 
jurisdiction,  and  had  this  issue  been  strictly  considered 
the  court  would  have  done  no  more  than  to  dismiss  the 
case  and  leave  it  as  it  had  been  determined  by  the  supreme 
court  of  Missouri ;  but  the  desire  of  the  judges  to  give 
peace  to  the  country  led  them  to  depart  from  a  decision 
strictly  resting  on  the  legal  matters  involved  and  to  enter 
upon  a  political  excursion. 

In  contrast  to  Marshall's  notable  decisions  on  American 
nationality,  Taney  now  held,  in  the  Dred  Scott  case,  that 
the  United  States  were  not  for  all  purposes  a  nation ;  and 
in  contrast  to  Marshall's  broad  construction  of  the  powers 
of  Congress,  he  now  decided  that  Congress  had  no  power 
to  restrict  slavery,  and  therefore  that  the  ordinance  of 
1787,  the  Missouri  compromise  of  1820,  and  the  multi- 
tudinous acts  incorporating  their  provisions,  were  uncon- 
stitutional. Soon  after  the  Dred  Scott  decision,  the  court 
sustained  the  constitutionality  of  the  fugitive  slave  law  of 
1850;^  but  the  decision  was  speedily  overruled  by  events. 

1  Genessee  Chief  v.  Fitzhugh,  12  Howard,  443  (1851). 

2  Died  Scott  z/.  Sandford,  19  Howard,  393  (1857) ;  for  a  further  account 
of  this  case,  see  chap,  x,  p.  194. 

8  Ableman  v.  Booth,  21  Howard,  506. 


THE    UNITED    STATES  247 

The  strict  construction  of  the  Constitution,  as  contained 
in  the.Dred  Scott  decision,  was  continued  in  a  number 
of  later  cases. ^ 

In  almost  the  last  case  in  which  Chief-Justice  Taney 
sat,-  he  denied  the  authority  of  President  Lincoln  to  sus- 
pend the  writ  of  habeas  corpus  at  his  discretion,  holding 
that  its  suspension  must  be  by  an  act  of  Congress.  This 
decision,  rendered  in  April,  1861,  was  at  once  given  a 
political  construction  at  the  North.  There  could  no  longer 
be  doubt  that  the  chief- justice  and  the  President  disagreed 
fundamentally  on  the  principles  of  constitutional  inter- 
pretation. The  habeas  corpus  case  gave  rise  to  a  very 
wide  discussion.  The  President's  supporters  took  issue 
with  the  court,  and  the  supporters  of  the  chief-justice  took 
issue  with  the  President.  The  majority  of  northern  peo- 
ple who  made  any  examination  of  the  case  held  to  the 
President's  view  of  it.  "  The  Constitution,"  said  he,  "  con- 
templates the  question  (the  suspension  of  the  habeas 
corpus)  as  likely  to  occur  for  decision,  but  it  does  not 
expressly  declare  who  is'  to  decide  it.  By  necessary  impli- 
cation, when  rebellion  or  invasion  comes,  the  decision  is 
to  be  made  from  time  to  time ;  and  I  think  the  man  whom 
for  the  time  the  people  have  under  the  Constitution  made 
the  commander-in-chief  of  their  army  and  navy  is  the 
man  who  holds  the  power  and  bears  the  responsibility  of 
making  it.  If  he  uses  the  power  justly,  the  people  will 
probably  justify  him;  if  he  abuses  it,  he  is  in  their  hands 
to  be  dealt  with  by  all  the  modes  they  have  reserved  to 
themselves  in  the  Constitution."  ^ 

Soon  after  the  civil  war,  the  supreme  court  decided  that 
the  President  cannot  suspend  the  writ,  but  may  be  author- 
ized to  do  so  by  Congress.*  President  Lincoln's  suspen- 
sion of  the  writ  was  almost  immediately  ratified  by  Con- 
gress.    He  had  acted  in  accordance  with  the  principle 

1  Steamer  "  St.  Lawrence,"  i  Black,  522 ;  The  Prize  Cases,  2  Black 
635- 

2  Ex  parte  Merryman,  Campbell's  Reports,  p.  646 

8  Letter  to  M.  Birchard  and  others,  June  29,  1863;  Works,  vol.  i, 
p.  361.  For  the  decision  of  Chief-Justice  Taney  in  the  Merryman  case, 
and  the  principal  opinions  which  it  drew  forth  from  men  of  various 
parties,  see  Campbell's  Pamphlets,  Philadelphia,  1862. 

*  Ex  parte  iMilligan,  4  Wallace,  114  (1867). 


248     A    CONSTITUTIONAL   HISTORY    OF 

that  in  time  of  public  danger,  so  imminent  and  grave  as  to 
admit  of  no  other  remedy,  the  President,  as  the  chief  exec- 
utive and  commander-in-chief  of  the  armies  of  the  United 
States,  is  justified  in  suspending  the  writ,  under  the  pres- 
sure of  visible  public  necessity.  Congress  merely  did  its 
duty  in  passing  the  act  ratifying  the  President's  conduct.^ 

As  Marshall's  opinions  were  characterized  by  a  liberal 
construction  of  the  Constitution,  so  Taney's  were  distin- 
guished by  a  construction  correspondingly  strict.  If  it 
can  be  said  that  Taney  had  judicial  predilections,  he 
leaned  toward  the  states  rather  than  the  United  States. 
No  more  learned  or  upright  judge  has  ever  sat  in  the 
supreme  court.  He  sought  to  maintain  the  even  balance 
of  the  judicial  scales.  His  later  decisions,  especially  in 
the  Dred  Scott  and  Merryman  cases,  were  so  speedily 
reversed  by  the  civil  war  that  they  possess  only  historical 
interest.  It  is  clear  that  the  trend  of  decisions  in  the 
highest  court  in  the  land  were,  from  the  opening  of  the 
nineteenth  century  to  the  years  of  Lincoln's  admin- 
istration, toward  an  interpretation  of  principles  of  gov- 
ernment such  as  was  first  given  in  "  The  Federalist." 
The  supremacy  of  the  national  government  was  main- 
tained. This  conclusion  aided  immeasurably  in  preparing 
the  way  for  the  abolition  of  slavery.  We  can  see  this 
now.  The  currents  of  national  life  were  set  strong 
toward  industrial  freedom.  Conscious  of  the  direction 
of  the  flow,  a  large  portion  of  the  American  people,  in 
1857,  considered  the  decision  of  the  court  in  the  Dred 
Scott  case  as  an  anachronism.  Yet  that  decision  was 
already  the  law  in  more  than  half  the  states  in  the  Union. 

Equality  in  condition  might  seem  afar  ofif,  when  the 
highest  court  in  the  country  was  pronouncing  such 
equality  unlawful.  And  the  prospect  of  realizing  that 
condition  seemed  forever  closed  by  the  laws  and  constitu- 
tions of  the  majority  of  states  in  the  Union.  There  was, 
for  practical  purposes,  however,  a  mighty  force  which  our 
supreme  judicial  tribunal  had  fully  recognized:  the  power 
of  the  people  themselves  to  amend  the  system  of  govern- 
ment which  the  Fathers  had  instituted.    This  force,  which 

'  Ilalleck,  International  Law,  3S0. 


THE   UNITED    STATES  240 

the  founders  of  the  government  had  recognized  as  one  of 
the  chief  corner-stones,  is  essentially  moral,  and  therefore 
essentially  social.  It  has  been  called  the  principle  or  right 
of  revolution ;  a  better  name  is  the  right  of  adaptation. 
And  it  was  the  capacity  of  the  American  people  to  apply 
this  principle  in  the  crisis  of  1860-1865  which  ranks  them 
as  worthy  descendants  of  the  generation  by  whom  the 
republic  was  founded. 

As  the  years  pass,  and  the  mighty  events  crowded  into 
the  years  of  civil  war  are  seen  in  their  right  perspective, 
the  changes  then  wrought  in  the  popular  ideal  of  repub- 
lican government  are  recognized  as  an  adaptation ;  a  civil 
adjustment,  such  as  may  be  likened  to  the  adaptation  of 
fauna  and  flora  to  climate  or  geographical  area.  The 
law  of  evolution  determines  the  course  of  government 
among  men,  as  it  determines  the  condition  of  society  from 
age  to  age.  Adaptation,  civil  adjustments,  are  not  made 
without  struggles,  revolutions,  or  even  death. 

In  vain  may  statesmen  legislate,  judges  decide,  and 
rulers  decree,  if  their  will  is  contrary  to  the  shaping  law 
of  adaptation.  They  who  win  fame  among  their  fellows 
because  of  the  triumph  of  their  ideas  are  they  whose  ideas 
are  in  harmony  with  the  overruling  principle  in  govern- 
ment, the  principle  of  adaptation. 

Seen  in  this  light,  the  organism  which  we  call  govern- 
ment is  a  natural  condition ;  society  is  essentially  an  expo- 
nent of  the  moral  order.  Popular  government  in  America 
is  not  a  fiction  agreed  upon  by  a  dominant  political  power. 
It  is  not  a  mechanical  device,  attempted  by  men  to  protect 
the  weak  from  the  strong.  If  this  is  not  true,  then  comes 
chaos. 

Looking  again  into  the  most  important  decisions  of  the 
supreme  court,  one  is  cheered  by  the  light  they  shed.  The 
supremacy  of  justice,  the  law  of  peace,  the  rights  of  men, 
are  the  theme.  We  venerate  the  name  of  John  Marshall 
because  his  thought,  like  Washington's  and  Lincoln's,  was 
profoundly  humane. 

The  large  orbit  of  the  moral  order,  which  their  thought 
pursues,  seems  the  fitting  course  of  national  life. 


250     A    CONSTITUTIONAL   HISTORY    OF 


CHAPTER   XII 

AMENDMENT 

Let  us  resume  the  narrative  of  the  evolution  of  political 
and  civil  ideas  at  the  point  in  the  prelude  of  war  at  which 
we  delayed  to  consider  the  organization  of  the  common- 
wealths and  the  interpretation  of  the  Constitution  by  the 
courts. 

On  the  14th  of  December,  1863,  James  M.  Ashley,  of 
Ohio,  offered  an  amendment  in  the  House  abolishing  slav- 
ery, and  on  the  nth  of  January  following,  John  B.  Hen- 
derson, of  Missouri,  offered  a  similar  one  in  the  Senate. 
The  Henderson  amendment  and  one  offered  by  Senator 
Sumner  were  referred  to  the  judiciary  committee,  which 
on  the  loth  of  February  reported  an  amendment  in  the 
language  of  the  ordinance  of  1787.  Senator  Henry  Wil- 
son, later  Vice-president  of  the  United  States,  who  repre- 
sented the  moderate  anti-slavery  sentiment  of  the  country, 
pronounced  the  proposed  amendment  "  the  crowning  act 
of  a  series  restricting  the  extension  of  slavery."  Senator 
Saulsbury,  of  Delaware,  denounced  it  as  unconstitutional 
and  "  beyond  the  power  of  the  general  government." 
The  requisite  number  of  states,  he  said,  could  not  be  found 
to  ratify  it;  if  the  federal  troops  were  removed  from  the 
South,  not  fifty  of  its  citizens  would  approve  the  amend- 
ment, or  recognize  the  authority  of  Congress.  Senator 
Henderson,  speaking  for  the  border  states,  answered  that 
war  had  changed  the  opinions  of  loyal  slave  owners  there ; 
they  now  agreed  that  the  price  of  union  must  be  the  abo- 
Htion  of  slavery.  Sumner  wished  the  amendment  to  read, 
"  all  persons  are  equal  before  the  law,"  —  a  phraseology 
taken  from  the  first  constitution  of  France.  But  his  col- 
leagues believed  that  the  language  of  the  French  constitu- 
tion could  not  be  made  applicable  to  America,  but  that  the 
language  of  the  ordinance  of  1787,  which  was  well  set- 


THE   UNITED    STATES  251 

tied  by  the  courts,  should  be  followed.  The  amend- 
ment was  adopted  in  the  Senate  by  a  vote  of  thirty-eight 
to  six,  and  was  sent  to  the  House,  but  there  received  no 
attention  for  seven  weeks.  When  at  last  it  was  briefly 
debated,  the  discussion  disclosed  that  though  there  would 
be  votes  enough  to  pass  it  as  a  resolution,  there  would 
be  far  too  few  to  adopt  it  as  a  constitutional  amendment. 
Its  opponents  pronounced  it  a  violation  of  the  original 
compact  between  the  states,  and  insisted  that  slavery,  if 
abolished  at  all,  must  be  abolished  by  the  act  of  the  states 
themselves.  The  final  vote  was  reached  on  the  15th  of 
June.  During  the  call,  Mr.  Ashley,  foreseeing  the  result, 
changed  his  vote  to  the  negative,  that  he  might  submit  a 
motion   for  reconsideration  at  the  proper  time.^ 

During  the  week  preceding  the  final  vote,  the  national 
republican  convention  had  been  in  session  at  Baltimore. 
Senator  E.  D.  Morgan,  of  New  York,  in  calling  it  to 
order,  asserted  that  the  convention  would  fail  of  its  mis- 
sion if  it  did  not  demand  a  prohibitory  amendment :  a 
sentiment  received  with  applause,  and  embodied  in  the 
party  platform.  It  was  soon  known  that  the  idea  origi- 
nated with  Mr.  Lincoln.  The  President  was  thus  renom- 
inated on  a  platform  pledging  the  republican  party  to  the 
adoption  of  an  abolition  amendment,  and  his  re-election 
was  interpreted  as  popular  approval  of  an  abolition  policy. 
In  due  time  Mr.  Ashley  gave  notice  of  reconsideration, 
and  on  the  6th  of  January,  1865,  again  proposed  the  joint 
resolution,  defending  it  in  a  speech  of  great  power.  Rati- 
fication by  twenty-seven  states  was  necessary,  but  he 
claimed  that  ratification  by  three-fourths  of  the  states 
recognized  by  Congress  would  be  sufficient.  Much  was 
said  against  the  amendment :  that  it  would  centralize 
authority  in  the  general  government ;  that  it  would  violate 
the  rights  of  the  states  and  would  drive  the  loyal  slave- 
holding  states  out  of  the  Union.  It  was  answered  that 
the  amendment  was  both  necessary  and  expedient.  The 
principal  objection  was  stated  by  George  H.  Pendleton, 
of  Ohio,  the  late  democratic  candidate  for  Vice-president, 
who  argued  that  even  if  three- fourths  of  the  states  rati- 

1  The  vote  stood  93  yeas,  65  nays ;  23  absent. 


252     A    CONSTITUTIONAL   HISTORY    OF 

fied  the  amendment,  this  action  would  not  make  the 
amendment  obHgatory  upon  any  state  which  might  choose 
to  resist  it. 

In  his  message,  December  6,  1864,  the  President  re- 
marked on  the  recent  failure  of  the  amendment  in  the 
House,  and  recommended  its  reconsideration  and  passage. 
The  November  elections,  he  said,  had  shown  almost  cer- 
tainly that  the  next  Congress  would  pass  the  measure  if 
this  one  did  not ;  and  as  it  was  to  be  passed,  then  the  sooner 
the  better.  Holman,  of  Indiana,  one  of  the  most  influ- 
ential Democratic  members,  saw  in  the  amendment  the 
entering  wedge  to  the  extension  of  the  suffrage  to  the 
negro.  As  slavery  was  dead,  he  thought  the  amendment 
unnecessary  and  a  dangerous  precedent  without  benefit. 
The  vote  was  cast  on  the  31st  of  January.  Colfax,  the 
Speaker,  was  the  last  member  to  vote,  and  he  voted  in 
the  affirmative.  The  amendment  was  passed,  but  the 
victory  was  not  strictly  a  party  victory.  Seventeen  Dem- 
ocrats had  voted  with  the  Republicans,  and  eight  Demo- 
crats who  absented  themselves  and  were  not  paired  had 
contributed  to  its  adoption.  As  is  not  infrequent  in  the 
passage  of  important  resolutions,  some  members,  less  pa- 
triotic than  selfish,  had  been  influenced  to  withdraw  their 
opposition  by  the  promise  of  important  offices  for  their 
friends,  and  of  the  adoption  of  legislation  in  which  they 
were  interested.^ 

On  the  1st  of  February  the  President  signed  the  joint 
resolution  and  it  went  forth  to  the  states.  Illinois  ratified 
on  the  same  day  that  the  President  signed  the  amendment. 
By  the  7th  of  April,  twenty  states  had  ratified,  including 
Maryland,  West  Virginia,  Virginia,  Missouri,  Louisiana, 
and  Tennessee.  Amidst  the  joyous  progress  of  the 
amendment,  Lincoln,  its  real  author,  was  assassinated,  and 
Andrew  Johnson  became  president.  On  the  29th  of  May 
the  new  President  appointed  provisional  governors  in 
seven  of  the  insurrectionary  states,  and  began  the  task  of 
carrying  out  a  policy  of  reconstruction.  He  advised  each 
governor  to  call  a  convention  that  should  frame  a  new 
state  constitution  and  restore  the  state  to  its  former  federal 

^  Nicolay  and  Hay's  Lincoln,  vol.  x,  p.  84. 


THE    UNITED    STATES  253 

relations.  Fourteen  classes  of  persons  were  excepted  from 
the  benefit  of  the  proclamation  of  amnesty  which  the  Presi- 
dent now  issued.  This  proclamation  had  been  prepared  by 
President  Lincoln,  and  his  successor  issued  it  without  al- 
teration. Mississippi  was  the  first  to  convene.^  Governor 
Sharkey  advised  the  delegates  to  submit  to  the  results  of 
the  war  and  to  harmonize  all  difficulties.  The  sentiment  of 
the  convention  was  not  ardently  responsive  to  the  Presi- 
dent's appeal.  The  delegates  insisted  that  slavery  had  been 
abolished  by  force,  and  therefore  that  the  United  States 
ought  to  take  care  of  the  freedmen.  The  convention  com- 
plained of  the  presence  of  negro  soldiers  in  the  state  as 
a  source  of  social  disturbance.  The  popular  feeling  was 
that  all  the  blacks,  in  a  general  way,  now  belonged  to 
the  whites,  and  that  they  could  expect  no  favors  from  their 
former  masters.  The  freedmen  were  now  considered  as 
free  persons  of  color  had  been  considered  before  the  war. 
They  were  a  people  without  a  country.  The  effort  of 
northern  people  to  open  churches  and  schools  for  them 
at  the  South  was  resented. 

In  his  amnesty  proclamation,  and  in  his  proclamation 
inviting  the  southern  states  to  reorganize  their  govern- 
ments. President  Johnson  had  said  nothing  of  negro  suf- 
frage, but  he  suggested  privately  to  Governor  Sharkey 
the  expediency  of  extending  the  right  to  vote  to  all  per- 
sons of  color  who  could  read  and  who  owned  real  estate 
valued  at  no  less  than  two  hundred  and  fifty  dollars. - 
But  the  governor,  knowing  that  the  suggestion  was  pre- 
mature, did  not  submit  it  to  the  convention.  It  is  doubt- 
ful whether  any  northern  state  at  this  time,  excepting 
perhaps  New  Hampshire,  Vermont,  or  Massachusetts, 
would  have  given  equal  suflfrage  to  the  black  man.  New 
York  had  refused  to  do  so  in  i860,  and  refused  again 
eight  years  later. 

The  Mississippi  convention  adopted  an  amendment 
abolishing  slavery  and  declared  the  ordinance  of  secession 
null   and   void.     But   there   was   a   strong   party    which 

*  August  14,  1865 ;  see  the  Journal  of  the  Proceedings  and  Debates 
of  this  Convention. 

*  See  p.  293, /£7jA 


254     A    CONSTITUTIONAL   HISTORY    OF 

thought  that  the  prohibitory  amendment  should  have  a 
preamble  declaring  that  slavery  was  abolished  in  the  state 
because  it  had  already  been  abolished  there  by  the  action 
of  the  general  government.  The  members  had  a  horror 
of  negro  equality ;  they  could  not  tolerate  the  thought  of 
negro  government.  Now  that  slavery  was  abolished, 
would  not  negro  suffrage  soon  be  foisted  upon  them  ?  The 
United  States  should  compensate  loyal  men  at  the  South 
for  property  lost  during  the  war,  and  in  justice  should 
compensate  the  slave  owners. 

President  Johnson  had  held  out  the  hope  that  the  rati- 
fication of  the  thirteenth  amendment  by  Mississippi  would 
practically  restore  the  state  to  the  Union.  The  convention 
would  make  the  condition  that,  as  the  compensation  for 
ratification,  the  representatives  and  senators  of  the  state 
should  be  admitted  to  Congress.  But  an  astute  member 
observed  that  if  the  South  wished  to  get  back  into  the 
Union  speedily,  and  to  unite  with  the  conservative  party 
at  the  North  in  a  struggle  to  control  the  next  presidential 
election,  it  should  not  attempt  to  impose  conditions ;  other- 
wise the  northern  radicals  would  keep  the  state  out  of  the 
union.  Give  the  negro  the  security  of  liberty  and  prop- 
erty, but  go  no  further.  The  conservative  delegates 
thought  that  they  detected  in  the  second  clause  of  the 
proposed  amendment  something  that  might  be  destructive 
to  the  South.  Under  the  power  "  to  enforce  the  amend- 
ment by  appropriate  legislation,"  might  not  Congress 
attempt  to  extend  the  franchise  to  the  negro? 

Meanwhile  Alabama,  South  Carolina,  North  Carolina, 
Georgia,  and  Florida  had  elected  delegates  to  conventions, 
and  these  assembled  during  September  and  October,  1865. 
Texas  convened  in  February  following.  The  Mississippi 
delegates  had  expressed  the  sentiments  of  the  people  of 
the  Gulf  states :  Slavery  was  dead  because  of  the  fatal 
blow  which  the  federal  government  had  struck,  but  the 
South  should  be  compensated  for  its  loss.  In  Alabama 
there  was  no  doubt  of  the  adoption  of  the  amendment 
abolishing  slavery  ;  the  only  question  was  whether  to  make 
its  acceptance  conditional.  The  vote  was  reached  on  the 
21  St  of  August,  and  slavery  was  declared  abolished. 
When  the  Mississippi  convention  abolished  slavery  in  the 


THE   UNITED    STATES  255 

state  it  refused  to  take  action  on  the  thirteenth  amendment, 
and  not  until  December  did  the  legislature  take  up  the 
question,  when,  in  the  form  of  a  long  committee  report,^ 
similar  to  reports  adopted  by  the  legislatures  of  Delaware 
and  Kentucky,  it  declared  the  amendment  a  violation  of 
the  reserved  rights  of  the  states,  untimely,  and  not  free 
from  the  latent  purpose  of  elevating  the  negro  race  to 
social  and  political  equality  with  the  white  race. 

But  the  insuperable  objection  to  the  amendment  was 
that  it  "  broke  down  the  efficient  authority  and  sovereignty 
of  the  state  over  its  internal  and  domestic  affairs."  The 
refusal  of  the  legislature  to  ratify  the  amendment  delayed 
the  restoration  of  the  state  to  the  Union  and  continued  it 
under  federal  military  rule.  The  Alabama  legislature  rat- 
ified the  amendment  almost  unanimously  two  days  before 
the  legislature  of  Mississippi  adopted  its  unfavorable 
report.  The  governor  of  the  state,  Parsons,  was  anxious 
that  Secretary  Seward  might  announce  it  as  the  twenty- 
seventh  to  ratify,  which,  if  true,  would,  as  the  secretary 
said,  "  fill  up  the  complement  of  two-thirds  and  make  the 
amendment  a  part  of  the  organic  law  of  the  land."  But 
the  consent  of  two  more  states  was  necessary.  Alabama 
was  the  twenty-fifth  state  to  ratify  and  the  thirtieth  tc 
abolish  slavery. 

In  South  Carolina,  as  in  the  other  late  insurrectionary 
states,  there  was  no  money  to  defray  the  expense  of  re- 
storing federal  relations,  and  they  were  defrayed  by  the 
national  government.  It  was  no  less  difficult  to  secure  a 
capable  convention  in  South  Carolina  than  in  other  south- 
ern states,  so  few  were  its  citizens  who  could  be  elected 
delegates,  by  the  conditions  of  the  President's  proclama- 
tion. In  order  to  have  a  convention,  the  President  found 
it  necessary  to  send  pardons  to  twenty  of  the  delegates 
chosen.  It  assembled  in  September,-  and  proceeded  to 
re-organize  the  state  government.  The  independent  tone 
of  its  debates  was  somewhat  paradoxical,  the  delegates 
appearing  to  think  that  they  could  yet  regulate  the  con- 
dition of  the  African  race  to  suit  themselves.     On  the  first 

1  December  4,  1865,  House  Journal. 

2  September  13-27,  1865;  see  its  Journal,  216  pages. 


256     A    CONSTITUTIONAL   HISTORY    OF 

day  of  the  session,  John  A.  IngHs,  who,  as  chairman  of 
the  committee,  had  reported  the  ordinance  of  secession 
on  the  20th  of  December,  i860,  introduced  an  ordinance 
to  aboHsh  slavery.  The  language  of  the  ordinance  was 
the  subject  of  much  discussion.  Should  it  not  declare 
that  the  slaves  had  been  emancipated  by  federal  authority  ? 
The  institution  could  never  be  re-established  in  the  state. 
Finally,  in  language  which  simply  declared  slavery  abol- 
ished, the  ordinance  was  passed  almost  unanimously.^ 
A  new  constitution  for  the  state  was  also  adopted,  by 
which,  though  slavery  was  abolished,  all  persons  of  Afri- 
can race  were  excluded  from  the  basis  of  representation. 
Meanwhile  the  President  had  become  anxious  over  the 
dilatory  proceedings,  and  had  telegraphed  Governor 
Perry,  that  if  the  convention  was  acting  in  good  faith, 
the  legislature  ought  immediately  to  ratify  the  amend- 
ment. This  it  did  on  the  13th  of  November,  but  with 
the  provision  that  any  attempt  by  Congress  to  legislate  on 
the  political  condition  of  the  negro  would  be  unconstitu- 
tional and  in  conflict  with  the  President's  policy  as  out- 
lined in  his  amnesty  proclamation. 

The  President  found  it  more  difficult  to  secure  a  conven- 
tion in  North  Carolina  than  in  Mississippi  or  South  Caro- 
lina ;  but  one  finally  assembled  on  the  2d  of  October.^ 
The  ordinance  of  secession  was  repealed,  and  slavery  was 
abolished  by  a  unanimous  vote,^  but  there  was  no  approach 
to  unanimity  on  any  other  subject.  The  President's  anxi- 
ety for  the  amendment  was  soon  relieved  by  the  legisla- 
ture, which,  with  but  six  dissenting  votes,  ratified  the 
thirteenth  amendment  on  the  ist  of  December. 

A  convention  was  out  of  the  question  in  Georgia  if  the 
President's  proclamation  was  to  be  strictly  construed. 
But  having  declared  his  willingness  to  grant  a  pardon 
to  all  in  the  state  who  deserved  pardon,  the  President 
made  it  possible  for  the  Milledgeville  convention  to  meet 
on  the  2ist  of  October  with  a  full  list  of  delegates.  The 
most   distinguished   member   was   Herschel   V.   Johnson, 

^  Septem'ier  19th. 

2  October  2-19,  1865;  May  24-June  25,  1S66;  see  the  Journals  of  the 
two  sessions. 
*  October  7th. 


THE   UNITED    STATES  257 

the  candidate  for  Vice-president  with  Stephen  A.  Douglas 
in  i860.  Georgia  compHed  with  the  President's  poHcy 
differently  from  any  of  its  neighbors.  It  abolished  slav- 
ery, not  by  an  ordinance,  but  by  inserting  a  prohibitory 
clause  in  the  bill  of  rights  of  the  new  constitution  of  the 
state.  But  it  did  this  with  a  sense  of  necessity.  Just  a 
month  before  the  convention  adjourned,  the  legislature, 
without  debate,  ratified  the  thirteenth  amendment  almost 
unanimously.^  Georgia  was  the  twenty-seventh  state  to 
ratify,  and  on  the  i8th  of  December,  1865,  Secretary  Sew- 
ard, by  proclamation,  announced  that  the  amendment  had 
become  a  part  of  the  Constitution.  Oregon,  California, 
and  Florida  ratified  in  December,  New  Jersey  and  Iowa 
in  January,  1866;  but  Texas  did  not  ratify  till  four  years 
later,  and  Delaware  and  Kentucky  rejected  the  amend- 
ment. 

At  the  time  the  amendment  was  ratified,  the  negro  pop- 
ulation of  the  country  numbered  a  little  more  than  five 
millions,  of  whom  four  and  one-half  millions  had  shortly 
before  been  slaves.  Government  North  and  South  was 
distinctively  the  white  man's.  Free  persons  of  color  were 
here  and  there  allowed  to  vote,  but  were  nowhere  suffered 
to  hold  office.  Emancipation  and  abolition  were  forced 
upon  the  South ;  they  were  the  results  of  the  war ;  but 
the  stoutest  southern  heart  might  well  tremble  at  the 
thought  of  four  millions  of  enfranchised  slaves  suddenly 
let  loose  amidst  a  scarcely  larger  white  population.  Pres- 
ident Johnson  had  held  out  the  hope  to  the  South  that 
its  ratification  of  the  amendment  abolishing  slavery  would 
restore  it  to  its  former  federal  relations,  —  a  condition  as 
bitter  as  inflexible.  In  every  southern  state  which  had 
ratified  the  amendment,  there  had  been  heard  a  voice  of 
warning  against  any  attempt  to  extend  the  elective  fran- 
chise to  the  negro.  In  only  one  state,  Texas,  did  a  dele- 
gate suggest  the  admission  of  the  negro  to  the  right  to 
vote  at  some  future  time.^  But  the  refusal  of  Texas  to 
ratify  the  amendment  showed  the  prevailing  sentiment 
in  the  state. 

1  December  9,  1865. 

2  Journal  of  the  Texas  Convention,  February  7-April  2,  1866,  p.  91. 

17 


258     A    CONSTITUTIONAL   HISTORY    OF 

With  the  exception  of  four  northern  states,  all  the  others 
North  and  South  had  ever  been  hostile  to  negro  suffrage. 
The  thirteenth  amendment  secured  freedom  to  nearly  five 
millions  of  human  beings.  There  were  now  above  a  mil- 
lion male  negroes  over  the  age  of  twenty-one  years,  and 
excepting  about  sixty-two  thousand  all  these  were  in  the 
former  slave-holding  states.  If  the  franchise  was  ex- 
tended to  them,  for  every  negro  voter  at  the  South  there 
would  be  two  whites,  but  at  the  North  eighty-four  whites. 
There  were  more  negroes  than  whites  in  South  Carolina 
and  Mississippi.  The  races  were  about  equal  in  Louisiana, 
and  nearly  so  in  Florida,  Georgia,  and  Alabama.  Presi- 
dent Johnson  held  that  the  southern  states  which  had 
ratified  the  thirteenth  amendment  were  entitled  to  resume 
their  place  in  the  federal  system.  He  disclaimed  any  con- 
stitutional authority  to  extend  the  elective  franchise  to 
the  negro,  and  believed,  although  he  had  suggested  the 
experiment  to  Governor  Sharkey,  that  it  was  not  yet  time 
for  so  radical  a  change.  Each  state  should  act  as  it 
thought  best  in  the  matter.  Congress  had  no  power  to 
make  the  extension. 

The  President  undoubtedly  had  the  letter  of  the  Con- 
stitution and  the  laws  and  practices  of  government, 
both  state  and  national,  on  his  side ;  but  the  abolition  of 
slavery  raised  a  new  problem  in  the  solution  of  which 
these  laws  and  precedents  were  of  little  use.  The  southern 
legislatures  which  convened  under  the  provisional  gov- 
ernments of  1865  passed  many  acts  affecting  the  status  of 
the  freedmen.  As  a  body  of  laws,  these  acts  discriminated 
against  the  negro,  but  they  were  a  most  liberal  departure 
from  the  old  slave  code.  At  the  time  they  were  made, 
negroes  did  not  stand  on  an  equality  with  white  men  in 
any  state  in  the  Union.  The  problem  of  making  the  polit- 
ical condition  of  whites  and  blacks  equal  affected  every 
commonwealth  in  the  Union.  It  provoked  a  counter-rev- 
olution which  has  not  to  this  day  ceased. 

The  belief  at  the  South  that  Congress  was  responsible 
for  the  negro  was  held  by  Congress  itself,  in  whose  hands 
it  took  the  form  of  the  civil  rights  bill,  presented  by 
Lyman  Trumbull,  of  Illinois,  in  the  Senate  on  the  5th  of 
January,  1866.     Its  advocates  declared  it  next  in  impor- 


THE   UNITED    STATES  259 

tance  to  the  thirteenth  amendment.  Its  purpose  was  to 
obliterate  all  discrimination  against  the  negro.  On  the 
13th  of  March  it  passed,  and  was  promptly  vetoed  by  the 
President  on  the  ground  that  Congress  had  no  power  to 
confer  state  citizenship.  The  negro,  he  said,  was  not 
qualified  to  vote  or  to  stand  on  an  equality  with  the 
white  man.  Moreover,  eleven  of  the  thirty-six  states 
were  as  yet  unrepresented  in  Congress,  and  these  were 
the  ones  most  deeply  concerned  in  the  whole  question. 
But  the  President's  chief  objection  to  the  bill  was  to  its 
invasion  of  the  rights  and  immunities  of  the  states.  By 
a  very  large  majority  in  both  branches,  the  bill  was  passed 
over  the  veto.^  It  was  the  first  great  act  of  congressional 
legislation  on  behalf  of  the  African  race. 

In  July,  Congress,  by  joint  resolution,  restored  Ten- 
nessee to  her  federal  relations.  Though  Johnson  signed 
the  resolution,  he  objected  to  it  as  "  anomalous,  unneces- 
sary, and  inexpedient,"  claiming  that  as  Tennessee  had 
ratified  the  thirteenth  amendment,  and  its  action  had  been 
accepted  by  Congress,  the  state  was  already  in  the  Union. 
On  the  8th  of  January,  1867,  Congress  conferred  the  right 
to  vote  on  negroes  in  the  District  of  Columbia.  The 
President  vetoed  the  bill  as  "  inexpedient  and  forcing  negro 
suffrage  upon  the  inhabitants  of  the  District."  He  used 
the  argument  against  it  which  had  been  often  heard  in 
constitutional  conventions, — that  to  allow  negroes  to  vote 
would  invite  multitudes  of  them  into  a  state ;  but  Congress 
passed  the  bill  over  the  veto. 

There  was  a  striking  analogy  between  this  act,  which 
gave  negroes  in  the  District  of  Columbia  the  right  to  vote, 
and  the  act  abolishing  slavery  in  the  District  of  Columbia 
and  the  territories,  which  had  preceded  the  joint  resolu- 
tion that  became  the  thirteenth  amendment.  Congress 
now  followed  the  suffrage  act  by  another,-  —  that  in 
territories  of  the  United  States  the  right  to  vote  should 
not  be  denied  "  on  account  of  race,  color,  or  previous  con- 
dition of  servitude."  It  became  a  law  without  the  Presi- 
dent's signature.  Its  first  application  was  to  Nebraska, 
which  had  already  been  organized  as  a  territory.     The 

1  April  9,  1866.  2  January  25,  1867. 


^  260     A    CONSTITUTIONAL    HISTORY    OF 

legislature  of  this  territory  in  February,  1866,  submitted  a 
constitution  to  the  people,  which  was  ratified,  but  it  lim- 
ited the  right  to  vote  to  white  persons.  Congress  promptly 
amended  the  former  enabling  act  for  Nebraska,  so  that 
the  territory  could  not  be  admitted  until  the  elective  fran- 
chise "  should  not  be  denied  to  any  person  on  account  of 
race  or  color,  except  Indians  not  taxed,"  and  its  legisla- 
ture, by  a  solemn  public  act,  should  assent  to  the  con- 
ditions. Thus  the  precedent  of  Missouri  in  1820  was 
applied  strictly  to  Nebraska  in  1867.  The  Nebraska  bill 
was  returned  by  the  President  with  a  veto  message.  He 
denied  the  authority  of  Congress  to  impose  the  electoral 
condition ;  for  from  the  foundations  of  the  government, 
each  state  had  been  left  free  to  determine  the  qualifications 
of  the  voter.  The  whole  matter,  therefore,  should  be  left 
to  the  decision  of  the  people  of  Nebraska.  But  the  bill 
was  passed  over  the  veto  by  a  large  majority  in  both 
houses.  Nebraska  complied  with  the  condition,  and  was 
admitted  as  Missouri  had  been  admitted  in   1821.^ 

While  Congress  was  effecting  these  radical  changes,  it 
was  also  engaged  in  discussing  an  amendment  to  the  Con- 
stitution which  would  secure  civil  and  political  rights  to 
the  African  race.  To  this  end  a  joint  committee  of  recon- 
struction had  been  appointed,  consisting  of  six  members 
of  the  Senate  and  nine  members  of  the  House.^  Both 
before  and  after  its  appointment,  many  amendments  were 
proposed  in  both  Houses,  involving  the  issues  of  recon- 
struction, namely,  the  extension  of  the  franchise  to  the 
negro,  the  repudiation  of  the  Confederate  debt,  the  estab- 
lishing of  the  basis  of  representation,  and  the  definition 
of  eligibility  to  office.  Finally  the  joint  committee  com- 
bined the  essentials  of  the  many  amendments  which  were 
offered  in  a  joint  resolution,  which,  modified  through 
debate,  became  the  fourteenth  amendment,  and  was  sent 
to  the  states  for  ratification. 

This  amendment,  in  the  form  of  a  resolution,  was  pre- 
sented to  the  House  on  the  30th  of  April  by  Thaddeus 
Stevens,  the  chairman  of  the  House  committee.  It  con- 
sisted of  four  parts :    the  first,  forbidding  the  states  to 

'  See  p.  148.  2  December  13,  1865. 


THE    UNITED    STATES  261 

abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  the  second,  enlarging  the  basis  of  repre- 
sentation by  including  within  it  all  persons  excepting 
Indians  not  taxed ;  in  case  of  the  denial  of  the  elective 
franchise  to  any  male  citizen  duly  qualified,  except  for 
participation  in  rebellion  or  for  other  crimes,  the  basis  of 
representation  in  the  state  should  be  proportionately  re- 
duced ;  the  third,  excluding  all  participants  in  the  rebellion 
from  the  right  to  vote  for  members  of  Congress  or  presi- 
dential electors  until  July  4,  1870;  and  the  fourth,  repudi- 
ating the  Confederate  debt  and  all  claims  for  loss  of  slaves. 
The  debate  covered  a  wide  field.  Supporters  of  the  reso- 
lution held  with  John  A.  Bingham,  of  Ohio,  that  as  all 
citizens  of  the  United  States  were  now  free  men,  no  state 
had  the  right  to  abridge  their  privileges  and  immunities. 
If  a  state  persisted  in  discriminating  against  one  class  of 
the  population,  a  corresponding  decrease  in  the  number 
of  its  representatives  in  Congress  would  be  the  just  conse- 
quence. Moreover,  such  an  arrangement  would  be  an 
inducement  to  the  southern  states  to  extend  the  suffrage 
to  the  negroes,  as  it  would  increase  the  number  of  their 
representatives  in  Congress.  The  repudiation  of  the  Con- 
federate debt  and  of  all  claims  for  the  loss  of  slaves  was 
due  to  the  people  of  the  country;  it,  too,  was  an  act  of 
justice. 

The  opponents  of  the  measure,  ably  led  by  Samuel  J. 
Randall,  of  Pennsylvania,  maintained  that  it  violated  the 
policy  of  discrimination  which  had  always  been  exercised 
by  the  states,  each  of  which  should  be  left  free  to  regulate 
the  franchise.  If  the  United  States  could  interfere  in 
behalf  of  one  group  of  rights,  it  would  soon  be  tearing 
down  every  barrier.  The  amendment  would  make  an 
entire  change  in  the  basis  of  representation,  and  this,  too, 
while  eleven  southern  states  were  excluded  from  repre- 
sentation in  Congress.  "  The  President,"  said  Mr.  Ran- 
dall, "  has  steadily  pursued  Mr.  Lincoln's  policy.  The 
states  are  in  the  Union ;  indeed,  they  have  never  been  out 
of  it ;  they  have  declared  their  ordinances  of  secession  null 
and  void  and  are  legally  entitled  to  representation.  The 
amendment  involves  the  whole  issue  of  reconstruction  and 
means  war,  and  not  peace."     James  A,  Garfield  wished  the 


262     A    CONSTITUTIONAL    HISTORY    OF 

resolution  amended  so  as  to  forever  exclude  all  persons 
who  had  voluntarily  adhered  to  the  southern  Confederacy, 
or  given  it  aid  or  comfort,  from  holding  any  office  of 
trust  or  profit  under  the  government  of  the  United  States.'- 
But  the  House  refused  to  make  any  change,  and  passed  the 
resolution  as  reported  by  the  committee.^ 

More  than  two  weeks  elapsed  before  the  resolution  was 
taken  up  in  the  Senate.  Senator  Howard,  of  Michigan, 
proposed  several  changes,  the  history  of  which  has  iden- 
tified his  name  with  the  fourteenth  amendment.  It  should 
define  United  States  citizens  and  those  qualified  to  hold 
office  under  the  United  States  or  in  a  state,  and  should 
declare  the  inviolability  of  the  national  debt.  The  How- 
ard amendments  had  been  carefully  considered  in  caucus, 
and  were  now  submitted  to  Congress  as  the  opinion  of  the 
republican  leaders.  The  definition  of  United  States  citi- 
zenship was  taken  bodily  from  the  civil  rights  law,  and 
Howard  argued  that  it  would  settle  a  great  question  long 
in  need  of  settlement  in  the  jurisprudence  of  the  country. 
It  was  objected  that  this  definition  of  United  States  citi- 
zenship would  include  Indians  and  Mongolians.  But  the 
objection  was  not  sufficient  to  stand,  and  Howard's  amend- 
ment was  agreed  to.  His  second  provision,  "  which,"  Sen- 
ator Fessenden  said,  "  would  prevent  a  state  from  saying 
that  though  a  person  is  a  citizen  of  the  United  States  he 
is  not  a  citizen  of  a  state,"  was  adopted  with  like  unanim- 
ity of  party  support,  Reverdy  Johnson  and  other  con- 
servative Democrats  objected  that  the  provision  went  too 
far.  Hendricks,  of  Indiana,  thought  that  the  exclusion 
from  office  should  be  limited  to  those  who  had  participated 
in  the  rebellion.  But  there  was  no  strong  opposition  to 
the  repudiation  of  the  Confederate  debt,  and  of  claims  for 
loss  of  slave  property. 

Plainly  there  was  much  heterogeneous  matter  in  the 
Howard  resolution,  but  the  grand  committee,  knowing 
well  the  party  strength  behind  them,  sagaciously  combined 
the  propositions  so  that  all  should  stand  or  fall  together. 
The  opposition,  therefore,  was  out-manoeuvred.  It  might 
object  to  particular  propositions,  but  the  fate  of  one  would 

1  Globe,  May  lo,  1866,  pp.  25-45.  2  127  to  ^j,  May  10. 


THE    UNITED    STATES  263 

be  the  fate  of  all ;  because  of  the  g^reat  republican  majority 
in  both  houses,  the  adoption  of  each  was  a  foregone  con- 
clusion, though  had  each  been  presented  separately  the 
vote  might  not  have  been  the  same.  The  stock  argument 
of  the  Democrats  against  the  amendment  was  the  plain 
assumption  by  Congress  of  the  right  to  prescribe  electoral 
qualifications.  On  the  31st  of  May  a  test  vote,  thirty 
yeas  and  ten  nays,  disclosed  the  strength  of  parties  in 
the  Senate,  and  from  this  time  opposition  to  the  amend- 
ment was  perfunctory.  On  the  8th  of  June  the  joint  reso- 
lution, as  amended  by  Senator  Howard,  received  the  vote 
of  two-thirds  of  the  Senate.^  Five  days  later  Thaddeus 
Stevens  presented  the  Senate  resolution  to  the  House,  at 
the  same  time  announcing  that  the  Republican  members 
of  the  grand  committee  were  unanimously  in  favor  of  the 
resolution  and  were  willing  that  the  vote  should  be  taken 
at  once.  He  congratulated  the  House  that  the  privileges 
and  immunities  of  every  citizen  were  now  to  be  extended  to 
a  race  hitherto  outlawed.  It  had  been  the  dream  of  his 
life,  he  said,  to  see  racial  discrimination  obliterated. 
Schuyler  Colfax,  the  Speaker,  put  the  question  of  concur- 
rence, and  the  amendment  was  adopted.^ 

The  attitude  of  the  republican  party  toward  the  ques- 
tions involved  was  well  defined  by  the  joint  committee  on 
reconstruction  in  its  report  submitted  to  Congress  on  the 
day  when  it  offered  the  amendment.  The  President,  so 
ran  the  report,  had  inaugurated  military  rule  in  the  South. 
The  provisional  governors  whom  he  had  appointed  had 
no  authority  to  organize  civil  governments,  for  this  power 
belonged  exclusively  to  Congress.  The  President's  act 
meant  no  more  than  that  he  would  withdraw  military  rule 
just  in  proportion  as  the  southern  people  manifested  a 
disposition  to  preserve  order  and  to  establish  civil  govern- 
ments. Congress  was  not  in  possession  of  the  information 
that  such  governments  had  been  organized.  In  all  the 
insurrectionary  states,  excepting  Tennessee  and  Arkansas, 
the  elections  had  resulted  in  the  choice  of  men  notoriously 
hostile  to  the  Union  ;  therefore  it  remained  with  Congress 
to  say  whether  these  states  were  restored  to  their  federal 

1  Yeas,  23;  nays,  ii.  2  120  yeas,  32  nays,  and  32  not  voting. 


264     A    CONSTITUTIONAL   HISTORY    OF 

relations.  In  waging  war  against  the  Union,  the  southern 
states  became  subject  to  all  the  rules  of  war  and  of  its 
ultimate  consequences.  The  question  whether  these  states 
were  in  the  Union  or  out  of  it  was  an  unprofitable  abstrac- 
tion. It  was  a  question  for  Congress  to  decide.  The 
thirteenth  amendment  had  abolished  slavery  but  left  the 
freedmen  in  an  anomalous  condition.  Congress  could 
not  abandon  them  without  first  securing  them  their  rights 
as  citizens.  The  fourteenth  amendment  now  proposed 
embodied  the  policy  of  Congress  toward  the  southern 
states. 

But  this  was  not  all.  Congress  proceeded  to  criticise 
the  President's  policy  to  restore  the  South  to  the  Union. 
The  southern  conventions  had  all  been  irregular.  The 
South  had  shown  no  disposition  to  change  its  opinions, 
but  with  very  few  exceptions  had  elected  as  senators  and 
representatives  in  Congress  men  who  had  actively  partici- 
pated in  the  rebellion.  Thus  the  South  was  not  in  a 
repentant  state.  It  showed  no  disposition  to  place  the 
colored  race,  though  composing  two-fifths  of  its  popula- 
tion, upon  terms  of  equality  with  the  white  race.  On  the 
contrary,  the  South  exhibited  on  every  hand  intense  hos- 
tility to  the  national  government,  and  an  equally  intense 
love  for  the  late  Confederacy. 

Confronted  with  such  evidence  as  this.  Congress  felt 
itself  forced  to  the  conclusion  that  the  states  lately  in 
rebellion  were  disorganized  communities  without  civil 
government  and  without  constitutions  and  other  forms 
by  virtue  of  which  political  relations  could  legally  exist 
between  them  and  the  federal  government.^ 

But  the  democratic  minority  of  the  joint  committee 
held  to  another  view ;  the  states  had  never  been  out  of 
the  Union,  they  had  complied  with  every  demand  of  the 
national  government ;  they  had  amended  their  constitutions 
and  ratified  the  thirteenth  amendment ;  they  had  elected 
senators  and  representatives  who  were  entitled  to  their 
scats  in  Congress.  Secession,  tested  by  the  ordeal  of  battle, 
had  failed,  and  the  South  utterly  abandoned  it  as  an  im- 
practicable  doctrine.     These   conflicting  opinions   within 

1  Report  of  the  Joint  Committee  on  Reconstruction,  pp.  vii-xxi. 


THE   UNITED    STATES  265 

the  committee  accurately  reflected  opinion  outside  of 
Congress,  and  the  two  great  parties  of  the  country  had 
marshalled  their  hosts  accordingly. 

The  prospect  of  the  ratification  of  the  amendment  was 
not  assuring.  New  England  might  be  counted  on  favor- 
ably, but  the  border  states  and  the  whole  South  were  sure 
to  reject  it;  the  West  would  probably  ratify.  New  York 
was  hostile  to  negro  suffrage,  and  would  probably  reject 
the  amendment.  Ohio,  Indiana,  California,  and  Nevada 
were  hostile.  The  consent  of  thirty  states  was  necessary, 
therefore  it  was  not  without  anxiety  that  the  republican 
Congress  sent  the  amendment  forth  to  the  states.  At  the 
North  its  ratification  was  made  a  party  issue,^  and  as  the 
Republicans  controlled  most  of  the  legislatures  it  w^as 
ratified.  The  democratic  members  of  the  New  Jersey 
senate  refused  to  vote  on  the  amendment,  and  the  result 
\vas,  practically,  an  adverse  action.  Oregon  ratified  by 
a  majority  of  one. 

In  seven  northern  states  ^  the  Republicans  at  this  time 
were  uniting  their  forces  to  obliterate  the  word  "  white  " 
from  the  constitutions.  Minnesota  had  recently  rejected 
an  amendment  to  its  constitution  granting  impartial  suf- 
frage, but  it  adopted  the  fourteenth  amendment.  A  large 
portion  of  Pennsylvania,  especially  the  eastern  counties, 
was  hostile  to  negro  suffrage,  but  the  legislature  ratified. 
Nebraska  adopted  it  on  the  15th  of  June,  1867,  which  was 
a  year  lacking  a  day  from  the  time  when  the  amendment 
passed  Congress.  Twenty-two  states  had  now  approved 
it,  including  Tennessee,  West  Virginia,  and  Missouri.  But 
in  the  fifteen  southern  states  it  had  been  almost  unani- 
mously rejected.  Their  legislatures,  largely  under  the 
direction  of  the  governors,  had  taken  the  ground  that  the 
South,  having  had  no  part  in  preparing  the  amendment, 
should  not  be  asked  to  adopt  it.  As  it  had  been  prepared 
irregularly,  its  validity  might  well  be  doubted,  even  if  it 
were  ratified.  Its  adoption  would  signify  that  the  Con- 
stitution was  at  the  mercy  of  whatever  party  might  be 
strongest  for  the  time  being. 

1  This  is  shown  in  the  platforms  of  the  State  Conventions ;  see  the 
Tribune  Almanacs  for  1S66-1S69. 

"  New  York,  Pennsylvania,  Ohio,  Michigan,  Wisconsin,  Minnesota, 
and  Kansas. 


266     A    CONSTITUTIONAL    HISTORY    OF 

The  attitude  of  the  South  was  exempHfied  by  North 
CaroHna,  whose  legislature,  in  rejecting  the  amendment, 
adopted  the  unfavorable  report  of  the  joint  select  com- 
mittee of  both  houses.^  The  report  went  over  the  whole 
ground  in  controversy ;  namely,  the  exclusion  of  the 
southern  states  from  representation  in  Congress  ;  the  origin 
of  the  amendment ;  its  doubtful  constitutionality ;  its  re- 
pugnance to  the  constitutions,  laws,  and  practices  of  the 
southern  states  ;  and  above  all,  its  invasion  of  the  exclusive 
right  of  a  state  to  regulate  the  suffrage.  Moreover,  it 
was  destined  solely  to  affect  the  South  and  to  disfranchise 
a  large  and  the  most  intelligent  portion  of  its  population. 
Its  provision  respecting  the  federal  debt  was  superfluous, 
as  the  honest  intention  of  the  people  was  to  pay  it.  As 
it  empowered  Congress  to  enforce  all  its  provisions  by 
appropriate  legislation,  it  opened  wide  the  door  for  sec- 
tional interference  with  a  subject  wholly  beyond  the  range 
of  federal  legislation.  In  brief,  the  amendment  indicated 
that  the  federal  government  had  radically  changed,  and 
now  threatened  to  concentrate  all  power  and  dignity  within 
itself  and  to  swallow  up  the  states. 

No  less  hostile  were  the  legislatures  of  Delaware, 
Maryland,  and  Kentucky,  which  in  elaborate  resolutions 
declared  against  the  amendment  as  violating  state  sov- 
ereignty and  forcing  negro  suffrage  on  the  people.  Lou- 
isiana and  Texas  took  no  action.  Thus,  in  the  spring  of 
1868,  the  amendment  stood  rejected  by  nearly  one-half  the 
states  in  the  Union. 

Meanwhile  testimony  had  been  accumulating  before 
Congress  as  to  the  condition  of  public  affairs  at  the  South. 
The  committee  on  reconstruction  had  gathered  a  mass  of 
evidence,  all  given  under  oath,  which  proved  unparalleled 
acts  of  hostility  and  cruelty  had  been  committed  at  the 
South  toward  the  freedmen.  Special  committees  were 
appointed,  each  of  which  thoroughly  investigated  the  sub- 
ject in  charge,  and  in  due  time  laid  its  report  before  Con- 
gress. The  terrible  aggregate  was  more  than  sufficient 
to  compel  Congress  to  enter  upon  a  policy  of  reconstruc- 
tion.    A   system   of   peonage   had   been   substituted   for 

1  December  13,  1866;  Pamphlet,  Raleigh,  16  pp. 


THE   UNITED    STATES  267 

slavery  in  parts  of  the  South.  Congress,  on  the  2d  of 
March,  1867,  aboHshed  and  prohibited  the  system  every- 
where in  the  Union.  But  the  day  of  the  enactment  of  this 
humane  law  is  memorable  for  the  enactment  of  the  first 
reconstruction  act,  "  to  provide  for  the  more  efficient  gov- 
ernment of  the  rebel  states."  The  act  divided  the  South 
into  five  military  districts,  and  put  each  district  under 
martial  law.  The  purpose  of  the  act  was  to  establish  state 
governments,  republican  in  form.  As  soon  as  any  of  the 
late  Confederate  states  organized  a  government  in  con- 
formity to  that  of  the  United  States  in  all  respects,  and 
adopted  a  constitution  acceptable  to  Congress,  and  the 
state  legislature  ratified  the  fourteenth  amendment,  Con- 
gress would  admit  representatives  and  senators  from  that 
state.  The  President  vetoed  the  bill,  ''  because,''  he  said, 
"  it  makes  the  military  paramount  to  the  civil  authority." 
He  denied  that  no  legal  governments  existed  in  the  South, 
and  asserted  that  Congress  was  intent  upon  creating  there, 
instead,  an  absolute  despotism.  But  notwithstanding  his 
objections,  the  bill  passed. 

In  a  supplementary  act,  passed  on  the  23d  of  March, 
Congress  required  that  the  new  constitutions  at  the  South 
must  be  ratified,  each  by  a  majority  of  the  whole  vote  in 
a  state,  at  least  one-half  of  the  voters  voting.  This  also 
was  passed  over  the  President's  veto.  In  July,  a  second 
supplementary  act  was  passed,  which  pronounced  all  the 
governments  in  the  ten  insurrectionary  states  illegal,  and 
authorized  the  appointment  of  negroes  to  serve  as  mem- 
bers of  boards  of  registration.^  The  President  vetoed  the 
bill  for  reasons  he  had  given  before.  A  contest  had  now 
begun  between  Congress  and  the  President,  and  raged 
during  the  remainder  of  his  administration. 

Negro  sufifrage  was  almost  as  objectionable  to  the  North 
as  to  the  South.  Maryland,  in  1867,  adopted  a  new  con- 
stitution limiting  the  sufifrage  to  white  men,  and  Michigan 
in  the  same  year  rejected  a  constitution  which  proposed 
to  give  the  negro  the  right  to  vote.  New  York  assembled 
in  one  of  the  ablest  of  conventions,-  and  discussed  negro 

1  July  iS.  1867. 

2  Proceedings  and  Debates  of  Convention,  Tune  4,  iS67-Februarv  28, 
1S68,  5  vols.  ^ 


268     A    CONSTITUTIONAL   HISTORY    OF 

suffrage  at  great  length ;  but  under  the  guiding  hand  of 
its  democratic  leaders,  shifted  upon  the  people  the  respon- 
sibility of  deciding  on  negro  suffrage.  In  the  November 
election  of  1869,  the  electors  refused,  by  a  majority  of 
forty  thousand  votes,  to  abolish  the  property  qualification 
required  of  colored  men  by  the  constitution  of  1821. 
Thus,  while  Congress  was  attempting  to  compel  the  south- 
ern states  to  adopt  negro  suffrage,  Maryland,  Michigan, 
and  New  York,  to  which  the  reconstruction  acts  did  not 
apply,  were  rejecting  the  principle. 

The  first  state  to  convene  under  the  reconstruction  acts 
was  Alabama.^  The  registration  showed  a  majority  of  fif- 
teen thousand  for  a  convention ;  but  nearly  all  the  whites 
had  refused  to  vote.  The  negroes  voted  as  in  the  other 
states  in  the  South,  —  by  virtue  of  the  provision  of  the 
reconstruction  acts,  and  under  the  protection  of  federal 
troops.  The  Alabama  delegates  framed  a  constitution, 
but  it  failed  of  ratification  by  about  eight  thousand  votes, 
though  seventy  thousand  had  been  cast  in  its  favor.  The 
clause  in  the  reconstruction  acts,  which  required  that  a 
constitution  must  be  ratified  by  at  least  one-half  the  voters, 
was  devised  to  protect  the  colored  vote,  but  the  hostile 
whites  knew  that  they  could  defeat  the  law  by  remaining 
away  from  the  polls.  In  order  to  save  the  work  already 
accomplished  in  reconstruction  in  Alabama,  Thaddeus 
Stevens,  on  the  nth  of  March,  reported  a  second  supple- 
mentary act,  to  the  reconstruction  law,  providing  that 
henceforth  the  adoption  or  rejection  of  a  constitution  by 
a  southern  state  should  be  determined  by  the  majority  of 
the  votes  cast.^     Stevens's  proposition  became  law. 

It  was  now  practically  impossible  for  a  southern  state 
to  escape  the  adoption  of  a  constitution  to  which  its  white 
citizens  were  opposed,  and  from  this  time  reconstruction 
ran  on  speedily.  The  state  conventions,  for  which  the 
negroes  voted  unanimously,  enrolled  many  negro  dele- 
gates. The  result  was  the  production  of  a  body  of  state 
constitutions  made  in  strict  conformity  to  the  reconstruc- 
tion acts.  But  the  martial  hand  of  Congress  could  not 
change  the  opinions  of  the  intelligent  white  men  of  the 

1  November  5-December  6,  1S67.  2  Act,  March  11,  1S68. 


THE   UNITED    STATES  269 

South,  who  looked  upon  the  whole  procedure  as  tyrannical 
and  unconstitutional.  In  each  convention  there  was  a 
vigorous  minority  opposed  to  negro  suffrage,  who  did  not 
hesitate  to  tell  the  negro  that  he  was  unfit  by  nature  to 
participate  in  civil  government ;  who  declared  that  the 
whole  motive  of  Congress  in  thus  dragooning  the  South 
into  a  compliance  with  the  fourteenth  amendment  was 
simply  partisan  in  order  that  the  Republicans,  for  a  time 
in  power,  might  control,  through  the  negro  vote,  those 
lately  in  rebellion.  But  the  minority  was  powerless,  except 
to  talk  and  to  enter  its  protest  on  the  journals.  In  every 
state  it  voted  and  acted  against  negro  suffrage. 

The  registration  in  South  Carolina  showed  nearly  twice 
as  many  black  as  white  voters.^  All  the  blacks  voted  for 
a  convention,  and  the  two  thousand  whites  who  voted, 
voted  against  it.  Nearly  two-thirds  of  the  delegates 
chosen  were  negroes.  Never  was  there  a  more  curious 
spectacle  than  that  of  1868  in  the  state  of  South  Carolina, 
which  a  little  more  than  eight  years  before  had  inaugu- 
rated a  secession  movement  in  a  convention  of  slave 
owners.  There  now  assembled,  at  Charleston,  to  form  a 
constitution,  sixty-three  negroes  and  thirty-four  white 
men.  No  less  curious  was  the  history  of  the  constitution 
which  they  formed ;  it  continued  in  force  until  1895,  out- 
lasting every  other  reconstruction  constitution.  Every 
convention  which  assembled  by  authority  of  the  recon- 
struction laws,  was  the  scene  of  more  or  less  disorder  and 
violence.  The  members  usually  undertook  to  act  as  a 
legislature  as  well  as  a  constitutional  convention,  and  also 
at  the  same  time  to  play  the  part  of  a  political  convention. 
Thus,  they  formed  state  constitutions,  enacted  ordinances, 
and  ran  a  political  campaign.  The  South  Carolina  con- 
vention nominated  a  state  ticket,  which  was  elected  in  due 
time. 

The  Florida  convention  speedily  fell  to  quarrelling,  and 
finally  divided  into  two  factions,  each  of  which  organized 
as  a  convention.  At  last,  by  the  intervention  of  General 
Meade,  a  compromise  was  effected  and  a  constitution  was 
adopted.     The  reconstruction  acts  were  carried  out  with 

1  78,982  blacks,  46,346  whites. 


270     A    CONSTITUTIONAL   HISTORY    OF 

difficulty  everywhere  in  the  South,  and  especially  in  Texas, 
where  a  reign  of  terror  prevailed,  and  a  convention  would 
have  been  utterly  impossible  had  it  not  been  for  the  pres- 
ence of  federal  troops.  The  state  officials  corroborated 
the  appalling-  reports,  which  had  already  reached  Congress, 
of  the  lawless  condition  of  Texas,  and  no  evidence  of  the 
carnival  of  crime  was  more  discouraging  than  that  given 
by  the  attorney-general,  William  Alexander.  His  testi- 
mony, and  that  of  other  state  officials,  as  well  as  the  testi- 
mony of  the  special  committee  appointed  by  the  convention 
itself,  showed  that  crime  had  never  before  been  so  rampant 
nor  lawlessness  so  wide-spread.  The  people  had  been 
forced  to  take  their  protection  into  their  own  hands.  The 
condition  of  Texas  differed  only  in  degree  from  that  of 
other  parts  of  the  South. 

Meanwhile  legislatures  had  been  ratifying  the  four- 
teenth amendment.  Nebraska  adopted  it  in  June,^  and 
was  followed  by  Iowa  in  April  of  the  following  year.^ 
Arkansas  ratified  unanimously,^  and  by  a  special  act  of 
Congress  was  readmitted  to  the  Union.  Florida,  North 
Carolina,  South  Carolina,  and  Louisiana  ratified  by  the 
9th  of  July;  Alabama  ratified  on  the  13th.  Individual 
bills  for  the  admission  of  these  states  were  immediately 
reported  in  Congress.  The  Republicans  supported  and  the 
Democrats  opposed  them,  for  reasons  which  the  respective 
parties  had  given  when  supporting  or  opposing  the  recon- 
struction acts. 

Ohio,  Oregon,  and  New  Jersey  withdrew  their  rati- 
fication of  the  amendment,  and  Delaware,  Maryland, 
Kentucky,  and  California  rejected  it  outright.  But  its 
adoption  by  Alabama  enabled  the  secretary  of  state,  Wil- 
liam H.  Seward,  to  announce  its  ratification  conditionally ; 
if  the  original  adoption  by  Ohio  and  New  Jersey  was  to  be 
considered  as  in  force,  the  fourteenth  amendment  had  been 
ratified  by  three-fourths  of  the  states  in  the  Union.*  On 
the  2 1  St  of  July,  Congress  adopted  a  joint  resolution,  of 
which  John  Sherman  was  the  author,  declaring  the  amend- 
ment a  part  of  the  Constitution,  and  instructing  Seward  to 

1  June  15,  1S67.  2  April  t„  i86S.  3  April  6,  1868. 

*  "  Documentary  Ili.story  of  the  Constitution,"  vol.  ii,  pp.  783-787. 


THE    UNITED    STATES  271 

issue  the  necessary  proclamation.  Thus  the  states  of  New 
Jersey  and  Ohio  were  counted  as  having  ratified.  The 
adoption  of  the  amendment  by  the  southern  states  was 
immediately  followed  by  proclamation  of  the  fact  by  the 
President,  and  by  the  passage  of  the  "  Omnibus  Act  "  re- 
storing these  states  to  their  federal  relations.  Virginia, 
Mississippi,  and  Texas  had  virtually  rejected  the  amend- 
ment by  refusing  to  entertain  it.  The  senators  and  repre- 
sentatives of  the  South,  excepting  from  these  three  states, 
were  permitted  to  take  their  seats  in  Congress  on  the 
25th  of  June,  1868.  The  South  had  not  been  represented 
in  Congress  for  seven  years. 

The  ratification  of  the  fourteenth  amendment  placed  the 
reconstruction  measures  of  Congress  beyond  repeal.  But 
might  they  not  be  nullified  by  the  southern  people  ?  In  one 
most  important  particular  the  amendment  had  failed ;  it 
had  not  induced  the  South  to  admit  the  negro  to  the 
suffrage  for  the  sake  of  securing  a  greater  number  of  rep- 
resentatives in  Congress.  The  South  felt  that  the  amend- 
ment had  been  forced  upon  it  at  the  point  of  the  bayonet, 
and  that  the  negro  had  been  made  the  instrument  of 
coercion.  Thus  it  happened  that  all  hatred  of  the  amend- 
ment was  now  concentrated  upon  the  unfortunate  negro. 

On  the  2 1  St  of  May,  1868,  General  Grant  and  Schuyler 
Colfax  were  nominated  by  the  Republicans  at  Chicago, 
on  a  platform  which  approved  the  reconstruction  policy 
of  Congress.  In  July,  at  New  York,  Horatio  Seymour  and 
Francis  P.  Blair  were  nominated  by  the  Democrats,  on  a 
platform  which  declared  those  acts  "  unconstitutional, 
revolutionary,  and  void  " ;  and  that  the  control  of  the  suf- 
frage "belonged  exclusively  to  the  states."  Virginia,  Mis- 
sissippi, and  Texas  did  not  participate  in  the  election,  and 
by  a  concurrent  resolution  Congress  ruled  that  the  electoral 
vote  of  Georgia  should  not  be  counted  so  as  to  affect  the 
result.  The  election  of  Grant  and  Colfax,  and  of  a  con- 
gress republican  in  both  branches,  by  large  majorities, 
was  construed  at  once  as  proof  that  the  majority  of  the 
people  of  the  country  approved  the  reconstruction  policy 
of  Congress. 

The  republican  leaders  now  bestirred  themselves  to 
make  secure  all  that  remained  uncertain,  and  particularly 


272     A    CONSTITUTIONAL    HISTORY    OF 

to  safeguard  the  right  of  citizens  to  vote  "  irrespective  of 
race,  color,  or  previous  condition  of  servitude."  A  con- 
stitutional amendment  to  this  effect  had  been  proposed 
while  the  fourteenth  was  under  discussion.  The  earliest 
proposition  emanated  from  Senator  Henderson  of  Mis- 
souri, who,  on  the  7th  of  March,  1867,  had  introduced  a 
resolution  which  is  of  interest  because  it  finally  became 
the  fifteenth  amendment.  But  the  attention  of  Congress 
was  at  that  time  concentrated  on  the  fourteenth  amend- 
ment, and  the  absorbing  interests  of  reconstruction  so 
dominated  both  houses,  that  not  until  six  months  after  the 
fourteenth  amendment  had  become  a  part  of  the  Consti- 
tution did  Congress  seriously  take  up  the  resolution  for 
securing  impartial  suffrage.  It  was  discussed  in  its  every 
aspect.  The  question,  though  a  part  of  the  general  recon- 
struction policy,  was  different  from  any  involved  in  the 
thirteenth  and  fourteenth  amendments.  Had  Congress 
the  right  to  pass  a  suffrage  amendment?  A  very  able 
discussion  of  this  question  followed.  Each  house  passed 
a  joint  resolution,  but  finally  the  refusal  of  the  House  of 
Representatives  to  concur  in  the  Senate  amendments  and 
the  refusal  of  the  Senate  to  recede  from  its  position  de- 
feated the  amendment.  The  long  debate  apparently  had 
come  to  a  lame  and  impotent  conclusion.^ 

The  negative  vote  was  scarcely  announced  in  the  Senate, 
however,  before  Senator  Stewart,  of  Nevada,  moved  to 
take  up  the  joint  resolution  which  Senator  Henderson,  of 
Missouri,  had  at  first  proposed,  and  which  had  been 
dropped  for  the  resolution  lately  sent  up  by  the  House. 
Though  very  weary  of  the  debate,  the  Senate  refused  to 
adjourn.  The  members  of  each  House  knew  very  well 
that  the  majority  were  in  favor  of  a  suffrage  amendment, 
and  that  the  failure  to  pass  one  was  due  merely  to  disa- 
greement over  the  wording  of  the  resolution.  The  matter 
had  been  discussed  so  long  both  Houses  were  in  a  queru- 
lous temper.  Senator  Howard  wished  an  amendment  that 
would  clearly  confer  upon  Congress  the  power  to  prescribe 
the  qualifications  of  voters  and  office  holders,  both  in  the 
states  and  in  the  United  States,  but  few  of  his  colleagues 

1  February  15-17,  1S69. 


THE    UNITED    STATES  273 

were  prepared  to  support  so  radical  a  measure.  Demo- 
cratic members,  like  Senator  Hendricks,  were  convinced 
that  an  amendment  of  some  kind  would  pass,  and  wished 
to  make  it  as  free  from  objections  as  possible.  At  last, 
after  many  attempts  to  adopt  an  amendment  in  other 
forms,  the  Senate  passed  the  Henderson  resolution  in  its 
original  form.^ 

On  the  20th  of  February,  the  House  took  up  the  Hender- 
son resolution.  Bingham,  of  Ohio,  moved  to  amend  it 
so  as  to  provide  that  the  right  of  citizens  of  the  United 
States  to  vote  and  to  hold  office  should  not  be  abridged  or 
denied  by  any  state  on  account  of  race,  color,  nativity, 
property,  creed,  or  previous  condition  of  servitude.  This 
gave  it  nearly  the  form  of  the  Senate  amendment,  which 
the  House  had  just  rejected.  The  end  of  the  session  was 
fast  approaching,  and  the  general  sentiment  was  for  a 
suiTrage  amendment,  yet  it  seemed  that  none  could  be 
adopted.  General  Butler  urged  the  House  to  concur  with 
the  Senate  resolution  lest  nothing  be  done,  and  it  be  for- 
ever too  late  to  pass  an  amendment.  Boutwell,  who  con- 
trolled the  time  of  the  House,  found  more  to  object  to  in 
the  modifications  suggested  by  his  colleagues  than  to  the 
Henderson  resolution.  Finally,  on  the  20th  of  February, 
Bingham's  amended  resolution  was  passed,  and  the  House 
requested  the  concurrence  of  the  Senate. 

In  the  Senate,  Buckalew  called  his  colleagues'  attention 
to  the  fact  that  the  resolution  now  did  not  differ  substan- 
tially from  the  one  which  had  originated  with  the  Senate, 
and  had  been  lately  rejected  by  the  House.  Agreement, 
therefore,  was  quite  possible,  and  the  Senate  decided  to 
ask  for  a  conference.  Senators  Conkling,  of  New  York, 
and  Edmunds,  of  Vermont,  were  appointed  managers  on 
the  part  of  the  Senate,  and  Boutwell,  of  Massachusetts, 
Bingham,  of  Ohio,  and  General  Logan,  of  Illinois,  on  the 
part  of  the  house.  On  the  25th,  Boutwell  made  his 
report  in  a  proposition,  which,  with  the  exception  of  three 
words,^  was  the  same  as  that  which  had  originated  with 
the  Senate.  The  report  of  Boutwell's  committee  was 
accepted  by  a  vote  of  one  hundred  and  forty-five  to  forty- 

1  February  17,  1869. 

2  The  words  "  to  hold  office  "  were  struck  out  in  conference. 

18 


274     A    CONSTITUTIONAL   HISTORY    OF 

four,  Colfax,  the  Speaker,  voting  in  the  affirmative.  On 
the  following  day  the  Senate  also  accepted  the  committee's 
report,  and  on  the  2d  of  March  a  concurrent  resolution 
was  adopted  instructing  the  President  to  transmit  the 
article  to  the  executives  of  the  states,  as  the  proposed 
fifteenth  amendment  to  the  Constitution. 

The  Republicans  considered  the  amendment  to  be  the 
crowning  work  of  reconstruction.  Its  language  had  been 
used  in  the  civil  rights  bill  of  April,  1866,  and  in  the 
enabling  act  for  Wyoming,  of  July,  1868,  both  very  recent 
precedents  for  so  radical  a  measure.  But  the  prospect  of 
its  adoption  by  the  states  was  gloomy.  Seven  northern 
states  had  rejected  negro  suffrage  within  two  years,  and 
in  five  others  the  Democratic  party  might  be  strong 
enough  to  defeat  the  amendment.  Even  John  Sherman, 
while  defending  the  amendment  in  the  Senate,  had  given 
warning  of  its  possible  defeat  in  Ohio.  So  uncertain  was 
the  prospect,  Congress  resolved  to  strengthen  the  chances 
of  ratification  by  making  the  admission  of  Virginia,  Mis- 
sissippi, and  Texas  to  federal  representation  conditional 
on  the  adoption  of  the  amendment  by  these  states.  The 
situation  of  the  freedmen  had  become  serious  in  the  last 
two  years.  The  reports  of  outrages  unsurpassed  in  cruelty 
were  accumulating  from  every  part  of  the  South.  The 
most  ominous  reports  were  from  Virginia,  Mississippi, 
and  Texas. 

The  evidence  submitted  by  the  Texas  constitutional 
convention  ^  showed  that  that  state  was  not  ready  for  civil 
government.  A  rigorous  act  was  passed  by  Congress  on 
the  1 8th  of  February,  1869,  affecting  Virginia  and  Texas. 
All  persons  holding  office  under  the  provisional  govern- 
ments in  the  states,  who  could  not  subscribe  to  the  oath 
of  loyalty  under  the  reconstruction  act  of  July,  1862,  were 
to  be  removed,  and  the  President  was  authorized  to  submit 
the  constitutions,  which  had  been  framed  in  these  states 
and  in  Mississippi,  to  the  people  that  they  might  take  a 
separate  vote  on  certain  objectionable  clauses  which  the 
conventions  had  adopted.     All  the  objectionable  clauses 

1  See  its  Journal,  June  ist-August  31,  1868  ;  December  7,  1S68,  Feb- 
ruary 6,  1869,  2  volumes. 


THE    UNITED    STATES  275 

were  repudiated,  and  the  constitutions  were  adopted.  On 
the  8th  of  October,  1869,  Virginia  ratified  the  fourteenth 
and  fifteenth  amendments  ;  Mississippi  ratified  both  on  the 
17th  of  the  following  January,  and  on  the  i8th  of  Febru- 
ary, 1870,  the  legislature  of  Texas,  by  joint  resolution 
ratified  the  thirteenth,  fourteenth,  and  fifteenth.  These 
states  were  immediately  admitted  to  representation  in 
Congress.  Texas  had  been  unrepresented  since  the  nth 
of  July,  1861,  a  period  of  nearly  ten  years. 

At  the  time  Texas  ratified  the  fifteenth  amendment  it 
had  been  approved  by  twenty-eight  states.  New  York  had 
ratified  on  the  14th  of  April,  1869,  but  the  legislature, 
democratic  in  both  branches,  elected  in  the  following 
autumn,  straightway  adopted  a  resolution,  introduced  by 
Tweed,  of  New  York  City,  withdrawing  the  act  of  rati- 
fication. In  May,  Ohio  rejected  the  amendment,  but 
meanwhile,  the  Republicans,  by  a  new  election,  having 
secured  a  majority  in  the  legislature,  the  amendment  was 
ratified  on  the  27th  of  January,  1870.  On  the  19th  of 
February,  Minnesota  made  up  the  number  of  ratifying 
states  required  by  the  Constitution,  and  on  the  30th  of 
March,  the  Secretary  of  State  announced  that  the  amend- 
ment had  become  a  part  of  the  Constitution.  Nearly  a 
year  later,  on  the  21st  of  February,  New  Jersey  ratified. 
The  amendment  was  rejected  by  Delaware,  Maryland, 
Kentucky,  Tennessee,  Oregon,  and  California. 

The  fifteenth  amendment  was  passed  by  Congress  to 
complete  the  civil  reforms  wrought  by  the  war.  In  the 
light  of  our  later  history,  it  may  seem  to  some  that  Con- 
gress should  have  gone  further  and  submitted  an  amend- 
ment which  would  have  given  to  the  United  States  full 
authority  to  define  and  regulate  the  right  to  vote  and  to 
hold  office,  and  that  such  an  amendment  and  no  other 
would  have  prevented  many  subsequent  evils  which  befell 
the  negro  at  the  South.  But  if  we  make  a  careful  exami- 
nation of  the  condition  of  public  afifairs  at  the  time  of 
the  submission  of  the  fourteenth  and  fifteenth  amend- 
ments, we  can  understand  the  practical  impossibility  of 
securing  the  adoption  of  more  radical  measures  than 
those  then  adopted.  The  fifteenth  amendment  would 
never  have  been  ratified  had  it  not  been  for  the  coercive 


276     A    CONSTITUTIONAL   HISTORY   OF 

reconstruction  acts.  The  state  of  public  affairs  enabled 
Congress  to  compel  the  late  insurrectionary  states  to  ratify 
the  amendments ;  but  the  South  ratified  the  thirteenth, 
partly  in  confidence  that  ratification  would  restore  it  to  its 
federal  relations,  and  partly  because  of  the  necessity  of  the 
situation.  It  ratified  the  fourteenth  and  fifteenth  amend- 
ments under  the  coercion  of  reconstruction,  —  the  coer- 
cion of  the  federal  bayonet  and  of  negro  votes. 

At  the  North  the  ratification  of  the  thirteenth  amend- 
ment, abolishing  slavery,  was  an  easy  matter,  but  the 
ratification  of  the  fourteenth  and  fifteenth  amendments 
was  strictly  a  party  procedure ;  the  Republicans  favoring, 
the  Democrats  opposing  them. 

The  nomination  of  General  Grant  for  the  presidency,  — 
and  he  was  the  most  popular  man  in  the  nation,  —  greatly 
helped  the  fifteenth  amendment  at  the  North,  for  it  was 
known  that  he  supported  the  reconstruction  policy  of  Con- 
gress. Seymour  and  Blair  stood  committed  against  this 
policy,  and  they  received  nearly  two-fifths  of  the  popular 
vote  of  the  country,  which  may  be  said  to  indicate  fairly 
the  strength  of  the  opposition  to  the  fifteenth  amendment. 
It  may  be  said  also,  that  this  amendment  was  carried,  in 
so  far  as  the  policy  which  it  embodied  was  made  an  issue 
at  the  polls,  by  three  hundred  thousand  votes  in  a  total  of 
nearly  six  millions.^  But  this  vote  recorded  far  more 
than  the  triumph  of  a  party ;  it  recorded  the  triumph  of 
a  great  principle  in  government  and  reversed  the  practice 
of  the  United  States  and  of  the  states  since  their  organi- 
zation, and  overthrew  many  cherished  traditions  of  the 
American  people.  The  thirteenth,  fourteenth,  and  fif- 
teenth amendments  recorded  in  the  most  solemn  manner 
a  vital  change  in  the  American  civil  system. 

The  adoption  of  the  three  amendments  of  the  civil  war 
period  was  an  adaptation  of  the  supreme  written  law  of 
the  country  to  the  industrial  and  political  demands  of 
the  American  nation.  They  were  a  vindication  of  pop- 
ular government.  In  this  adaptation  no  violence  was 
done  to  any  principle  of  government  which  the  founders 

1  The  popular  vote,  November  3,  1868,  stood  for  Grant  and  Colfax, 
3,01 5,07  r  ;  for  Seymour  and  Blair,  2,709,613;  Virginia,  Mississippi,  and 
Texas  not  votincr. 


THE    UNITED    STATES  277 

of  the  American  system  had  advocated.  Freedom  and 
representation,  —  which  the  amendments  give  to  the  negro 
race,  —  were  recognized  as  essential  to  popular  govern- 
ment in  1776.  The  amendments  extended  the  rights  hith- 
erto possessed  and  exercised  by  the  white  race  in  America 
to  the  black  race.  Adaptation  was  in  this  case  an  exten- 
sion of  a  privilege,  —  the  right  to  vote ;  and  the  recog- 
nition of  a  right,  —  freedom  and  representation. 

The  supreme  law,  by  the  addition  of  these  amendments, 
reached  a  stage  of  adaptability  to  American  conditions 
which  may  be  said  to  approach  completion.  As  a  working 
plan  of  popular  government  this  law  now  attained  effi- 
ciency. The  history  of  the  growth  of  this  supreme  law, 
—  this  national  Constitution, —  is  the  history  of  more  than 
the  evolution  of  a  form  of  words.  All  the  efficiency  of 
this  Constitution  might  have  been  attained  in  another  mode. 
The  flexible  English  system  comprehends  and  secures 
civil  and  industrial  rights  as  completely  as  does  the  inflex- 
ible American  system.  A  written  constitution  like  ours 
does  not  of  itself  make  life  and  property  secure.  It  is 
the  administration  of  the  law  which  tests  the  law.  An 
administrative  rule  may  appeal  so  favorably  to  a  people 
that  they  will  incorporate  it  in  their  constitution  of  gov- 
ernment. The  constitution  of  Pennsylvania  of  1873  pro- 
vides that  no  law  shall  be  passed  except  by  bill;  no  bill 
shall  be  so  altered  on  its  passage  through  either  House  as 
to  change  its  original  purpose ;  no  bill  shall  be  considered 
unless  referred  to  a  committee,  returned  therefrom  and 
printed  for  the  use  of  the  members ;  every  bill  shall  be 
read  at  length  on  three  different  days  in  each  House ;  and 
all  amendments  shall  be  printed  for  the  use  of  the  mem- 
bers before  the  final  vote  on  the  bill  is  taken.^ 

Each  of  these  provisions  is  a  transcript  of  the  House 
and  Senate  rule  on  the  subject  at  the  time  this  constitution 
was  made.  Every  state  constitution  illustrates  a  similar 
adaptation.  So,  too,  does  the  national  Constitution.  The 
thirteenth  amendment  is  a  transcript  of  a  portion,  and  the 
most  important  portion,  of  the  ordinance  of  1787.  Several 
sections  of  the  national  Constitution  are  the  direct  out- 

1  Article  III,  sections  i,  2,  4. 


278     A    CONSTITUTIONAL    HISTORY    OF 

growth  of  rules  of  Parliament,  —  such  as  the  section  de- 
fining the  organization  of  the  Houses,  their  rules  of 
procedure  and  the  rights  and  privileges  of  members.^ 

Close  analysis  of  a  constitution  of  government,  written 
or  unwritten,  discloses  that  the  supreme  law  is  a  compo- 
sition of  many  laws  which  survive ;  it  is  an  embodiment  of 
civil  experience.  An  entirely  new  constitution  is  practi- 
cally impossible.  It  is  not  impossible  that  a  constitution 
should  carry  meaningless  and  dead  clauses,  —  an  apposite 
illustration  of  which  is  afforded  by  existing  state  constitu- 
tions which  describe  the  voter  as  a  white  man.  No  fewer 
than  five  states  ^  still  retain  this  discriminating  word, 
though  the  discrimination  was  abolished  in  1870  by  the 
adoption  of  the  fifteenth  amendment.  Similar  and  no  less 
notable  vestiges  of  the  old  order  may  be  found  in  every 
state  constitution  in  force  in  America.  Veneration  of 
forms,  the  love  of  the  immediate  and  familiar,  and  the 
unwillingness  of  conventions  to  evoke  hostility  to  a  pro- 
posed constitution  contribute  to  retain  words,  phrases, 
and  clauses  the  value  of  which  is  largely  historical.  Any 
constitution  at  any  time  in  force  in  America,  stripped  of 
its  strictly  administrative  and  of  its  effete  provisions, 
would  become  a  brief  statement  of  rights ;  indeed,  a  brief 
bill  of  rights.  But  it  is  the  administrative  feature  of  a 
written  constitution  which  gives  it  working  value.  The 
"  ancient  and  undoubted  rights  "  of  men ;  the  "  natural 
rights  of  man,"  —  of  which  so  much  was  said  at  the 
time  of  the  revolution,  —  are  accepted  by  the  mass  of 
citizens  in  much  the  same  spirit  as  they  accept  the  ten 
commandments.  It  is  the  administrative  changes  and 
amendments  which  now  stir  the  passions  of  men.  The 
landmarks  of  the  American  civil  system  have  been  located. 
The  problem  now  is  to  discover  and  utilize  a  svstem  of 
administration  which  will  realize  for  the  citizen  the  rights 
and  privileges  expressed  and  implied  in  the  principles. 

Thus  it  follows  that  the  easier  it  is  to  amend  a  constitu- 

1  Article  I,  sections  5,  6.  For  a  detailed  account  of  the  authorship 
and  sources  of  the  constitution,  see  the  author's  "  Constitutional  History 
of  the  United  States,  1765-1895."  vol.  iii,  pp.  463-515, 

2  Maryland,  constitution  of  1867  ;  Ohio,  185 1 ;  Michigan,  1850;  Nevada 
1864;  Oregon,  1859. 


THE   UNITED    STATES  279 

tion,  the  more  frequently  it  is  amended;  a  working  rule 
which  goes  far  to  explain  why,  out  of  some  eighteen  hun- 
dred amendments  which  have  been  offered  in  Congress 
to  the  national  Constitution  since  1789,  only  fifteen  have 
been  adopted.  Yet  since  1789  nearly  one  hundred  state 
constitutions  and  above  three  hundred  amendments  to 
them  have  been  ratified,  the  union  increasing  meanwhile 
from  thirteen  to  forty-five  members. 

The  difBculty  in  modifying  the  national  plan  of  gov- 
ernment by  adopting  amendments  has  necessitated  resort 
to  administration,  which  means  reading  into  the  text  of 
the  supreme  law  a  meaning  which,  had  it  been  possible, 
would  have  been  expressed  by  verbal  change.  The  in- 
flexibility of  the  national  Constitution  has  compelled  polit- 
ical parties  to  depend  on  congressional  legislation  in  order 
to  adapt  the  national  system  to  the  needs  of  the  country. 

Not  so  in  the  states.  There  the  constitutions  have 
been  made  as  flexible,  practically,  as  laws.  Delaware 
alone  of  the  states  made  a  new  constitution  excessively 
difficult  to  change,  but  the  almost  impossible  conditions 
fixed  by  the  constitution  of  183 1  ^  were  met  in  1896  and 
the  new  constitution  of  1897  ^^^^  straightway  prepared. 
No  fetters  of  like  kind  can  ever  be  forged  again  in  an 
American  commonwealth.  New  York,  Virginia,  and 
Maryland  made  a  new  constitution  possible  once  in  twenty 
years. ^  But  the  conservatism  of  these  states  and  of  Dela- 
ware was  not  characteristic  of  American  commonwealths. 
The  newer  communities,  —  those  west  of  the  original 
states,  —  placed  few  difficulties  in  the  way  of  new  consti- 
tutions. As  frequently  as  the  voters  may  will,  the  two 
Houses  having  voted  a  convention  necessary,  and  the  people 
having  ratified  this  decision  at  the  polls,  Michigan  auth- 
orized the  calling  of  a  convention  once  in  sixteen  years,^ 

1  Article  IX.  The  difficulty  in  Delaware  was  to  obtain  a  majority  of 
votes  for  a  convention  (/.  e.,  of  the  highest  number  of  votes  cast  in  the 
state  at  any  one  of  three  general  elections  next  preceding  the  day  of 
voting  for  a  convention),  and  then  to  elect  an  assembly  which  should 
"deem  a  convention  necessary."  Amendment  of  the  old  constitution 
(1831)  was  almost  as  difficult. 

2  New  York  constitution,  1846,  Article  XIII,  2;  Maryland  consti- 
tution, 1S67,  Article  XIV;  Virginia,  1S70,  vol.  xii,  p.  2. 

8  Beginning  with  1866,  constitution,  1850. 


28o     A    CONSTITUTIONAL   HISTORY    OF 

and  New  Hampshire  every  seven  years. ^  The  possibility, 
and,  in  some  sections  of  the  country,  notably  the  West, 
the  probability  of  frequent  revision  of  the  state  consti- 
tution, practically  transformed  this  instrument  into  a 
code,  which  was  responsive  to  changes  in  public  opinion. 

It  is  to  the  states  that  we  must  turn  if  we  desire  to 
follow  the  evolution  of  government  in  America  after  1870. 
Their  constitutions  register  changes  in  the  popular  concept 
of  the  organic  law.  A  civil  war,  itself  a  mighty  revolu- 
tion, made  possible  the  adoption  of  the  thirteenth,  four- 
teenth, and  fifteenth  amendments  to  the  plan  of  the 
national  government,  and  it  may  be  affirmed  that  no 
equally  radical  change  in  that  plan  is  probable  save  by  the 
compulsion  of  events  as  imperiously  dominating  as  were 
the  causes  of  the  civil  war.  The  last  three  amendments 
were  made  in  recognition  of  the  changed  condition  of 
the  negro  race  in  America.  That  condition  was  both 
industrial  and  civil,  and,  therefore,  political.  The  amend- 
ments confirmed  the  truth  of  judicial  decisions,  —  that 
government  in  America  as  organized  and  administered 
down  to  1870  was  exclusively  for  the  white  race.  To 
whatsoever  extent  persons  of  African  blood  participated 
in  that  government,  the  participation  was  exceptional, 
and  not  recognized  by  the  supreme  law  of  the  land.  It 
was  local  and  not  general  in  character. 

The  iconoclastic  amendments  transformed  slaves  into 
United  States  citizens.  This  change  revolutionized  gov- 
ernment in  all  the  states,  but  most  radically  in  those  which 
had  been  slave-holding.  The  necessity  which  the  amend- 
ments, —  or,  more  perfectly  speaking,  which  the  amended 
Constitution  imposed  on  the  people  of  the  several  states, 
—  was  to  adapt  local  government  to  the  newly  recognized 
rights  and  the  recently  conferred  privileges  of  the  negro. 
The  history  of  this  adaptation  comprises  the  critical  chap- 
ter in  the  evolution  of  government  in  the  southern  states 
since  the  civil  war.  That  evolution  comprehends  the 
organic  laws  which  have  been  made  since  that  war  in  the 
commonwealths  to  regulate  the  suffrage  and  the  basis  of 
representation. 

1  Constitution,  1792. 


THE    UNITED    STATES  281 

In  the  northern  states  and  in  those  organized  and  ad- 
mitted into  the  Union  since  the  civil  war,  the  evohition 
of  government  followed  a  course  which,  in  large  measure, 
was  prescribed  by  the  economic  conditions  growing  out 
of  that  war;  but,  in  a  deeper  sense,  growing  out  of  the 
tendency  of  industrial  life  in  such  a  country  as  ours. 
The  rights  of  labor  are  the  chief  factor  in  the  civil  evolu- 
tion of  the  North  since  i860.  In  a  large  and  comprehen- 
sive sense  these  rights  include  all  the  rights  in  agitation 
since  the  civil  war.  But  at  the  North  the  heavy  hand 
of  the  race  question  was  not  felt.  The  race  question  at 
the  South,  the  industrial  question  at  the  North,  are  the 
dual  expression  of  doubt,  difficulty,  and  change  through 
which  America  has  passed  since  the  civil  war.  The  years 
during  which  slavery  was  abolished  and  civil  and  political 
rights  were  given  to  the  negro,  form  the  period  of  recon- 
struction, so  called.  On  the  ist  of  April,  1870,  all  persons 
born  or  naturalized  in  the  United  States  and  subject  to  its 
jurisdiction  were  citizens  of  the  United  States  and  of  the 
state  in  which  they  lived,  and  could  not  be  denied  the 
right  to  vote  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.  Chinamen  and  Indians  not  taxed 
were  not  included.  Less  than  five  years  earlier,  slavery 
was  not  abolished,  and  only  white  persons  and  about  half 
a  million  free  persons  of  color  were  citizens.  No  parallel 
can  be  found  in  history  to  the  civil  and  political  change 
effected  in  the  brief  period  of  five  years  in  America. 
A  brief  summary  of  the  successive  acts  in  this  stupendous 
change  shows  its  origin  and  extent : 

Congress,  by  law,  August  6,  1861,  confiscated  rebel 
property;  the  ownership  of  slaves  employed  against  the 
authority  of  the  United   States   was  declared   forfeited.^ 

General  John  C.  Fremont  issued  a  proclamation,  August 
30,  emancipating  all  slaves,  the  property,  real  or  personal, 
of  persons  in  Missouri  who  had  taken  up  arms  against 
the  United  States,  or  given  its  enemies  aid  or  comfort. 
This  proclamation  was  modified,  by  order  of  the  President, 
so  as  to  conform  to  the  confiscation  act  of  the  6th  of 
August.^ 

^  Statutes  at  Large,  vol.  xii,  p.  319.        2  War  Records,  vol.  iii,  p.  446 


282     A    CONSTITUTIONAL    HISTORY    OF 

Compensatory  emancipation  was  urged  upon  Congress 
by  the  President  in  November;  Delaware  refused  to  at- 
tempt it,  likewise  Maryland,  Virginia,  Kentucky,  and 
Missouri.^ 

In  April  the  United  States  and  Great  Britain  concluded 
a  treaty  at  Washington  for  the  suppression  of  the  slave 
trade. - 

General  David  Hunter,  on  May  9,  declared  forever  free 
the  slaves  in  Georgia,  Florida,  and  South  Carolina.  The 
President  ten  days  later  repudiated  the  order  officially.^ 

Congress  abolished  slavery  in  all  the  territories  of  the 
United  States,  June  19,  1862.* 

On  June  26,  Congress  abolished  slavery  in  the  District 
of  Columbia,  and  repealed  the  law  which  excluded  negro 
witnesses  in  judicial  proceedings.^ 

In  July,  Congress  emancipated  all  slaves  who  escaped 
from  masters  engaged  in  insurrection.  The  President 
was  authorized  to  employ  freedmen  in  the  suppression 
of  the  rebellion.^ 

President  Lincoln  issued  his  preliminary  emancipation 
proclamation,  September  22,  1862,  that  all  persons  held 
as  slaves  within  any  state  the  people  of  which  should  be 
in  rebellion  against  the  United  States  on  the  ist  of  Jan- 
uary, 1863,  should  be  "  then,  thenceforward,  and  forever 
free."     The  final  proclamation  followed  in  January. '^ 

West  Virginia,  organized  as  a  state  during  the  period 
from  May,  1861,  to  June,  1863,  was  admitted  into  the 
Union. ^  Though  a  slave-holding  state  its  constitution 
provided  for  gradual  emancipation.  The  importation  of 
slaves  into  the  state  was  forbidden." 

Four  former  slave-holding  states  adopted  constitutions 
abolishing  slavery :  Arkansas,  Virginia,  Louisiana,  and 
Maryland,  the  latter  also  declaring  the  paramount  auth- 

1  Lincoln's  Works,  vol.  ii,  p.  91 ;  1862,  March  9,  Statutes  at  Large, 
vol.  xii,  p.  132 ;   March  14,  Id.  p.  137  ;   Id.  p.  617. 

2  Treaties  and  Conventions,  p.  454. 

^  IJncoln's  Works,  vol.  ii,  pp.  1 1;4,  155,  205. 

*  Statutes  at  Large,  vol.  xii,  p.  432.  ^  Id.  p.  539. 

s  Id.  pp.  591,  592. 

■^  Lincoln's  Works,  vol.  ii,  pp.  213,  214,  225,  237,  238,  287,  288. 

8  June  19,  1863. 

s  Constitution  of  West  Virginia,  Art.  IX,  sec.  7. 


THE   UNITED    STATES  283 

ority  of  the  United  States.  Louisiana  empowered  the  leg- 
islature to  extend  the  sufifrage  at  discretion  "  to  such  other 
persons  [negroes],  citizens  of  the  United  States,  as  by 
military  service,  by  taxation  to  support  the  government,  or 
by  intellectual  fitness,  may  be  deemed  entitled  thereto,"  — 
a  provision  suggested  by  President  Lincoln  to  Governor 
Hahn/ 

The  republican  party  in  convention  at  Baltimore  renom- 
inated Lincoln  and  issued  a  platform,  one  clause  of  which 
demanded  an  amendment  to  the  Constitution  abolishing 
slavery,  "  as  the  cause  and  the  strength  of  the  rebellion."  ^ 

Nevada  was  admitted  as  a  free  state,  its  constitution 
in  its  bill  of  rights  declaring  the  paramount  authority 
of  the  United  States  and  its  right  to  coerce  a  state  —  the 
latter  the  only  declaration  of  the  kind  found  in  an  Ameri- 
can constitution.^ 

Missouri  and  Tennessee  abolished  slavery  in  January, 
and  on  the  ist  of  February  Congress  passed  the  resolution 
known  as  the  thirteenth  amendment.  It  was  ratified, 
according  to  a  proclamation  issued  by  the  Secretary  of 
State,  William  H.  Seward,  December  8,  1865.  Among  the 
ratifying  states  were  Maryland,  West  Virginia,  Virginia, 
Missouri,  Louisiana,  Tennessee,  Arkansas,  South  Carolina, 
Alabama,  North  Carolina,  Georgia,  and,  shortly  after  the 
secretary's  proclamation,  Florida.* 

During  the  summer  and  autumn  of  1865,  "  restoration  " 
conventions  assembled,  in  compliance  with  the  proclama- 
tions of  President  Johnson,  in  Mississippi,  Alabama, 
South  Carolina,  North  Carolina,  Florida,  and  Georgia. 
The  constitutions  promulgated  abolished  slavery,  but 
excluded  the  negro  from  the  basis  of  representation  and 
from  the  franchise.  President  Johnson,  in  a  letter  to 
the  provisional  governor  of  Mississippi,  William  L.  Shar- 

^  1864,  Arkansas,  January  22,  Convention  Tonrnal ;  Virginia,  March 
lo.  Journal,  pp.  17,  18;  Louisiana,  May  11,  Debates,  pp.  221,  224;  Con- 
stitution, title  iii,  sec.  15;  Maryland,  Tune  24,  Debates,  p.  742,  Constitu- 
tion, Declaration  of  Rights,  Art.  V;  Lincoln's  Works,  vol.  ii,  p.  496. 

2  June  7,  McKee's  Platforms,  p.  71. 

3  October  30,  1864,  Convention  Debates,  p.  53;  Constitution,  Art.  I, 
sec.  2. 

*  1865,  Missouri,  January  11,  Journal  of  Convention,  p.  21; ;  Tennessee. 
January  14,  Annual  Cyclopedia,"i864,  P-  768;  Congressional  Globe,  1865 
PP-  530.  ■'^31  • 


284     A    CONSTITUTIONAL   HISTORY    OF 

key,  urged  the  extension  of  the  suffrage  to  negroes  who 
could  read  and  write  the  Constitution  of  the  United  States 
in  Enghsh,  who  owned  real  estate  of  the  value  of  two 
hundred  and  fifty  dollars,  and  paid  taxes.  The  President's 
recommendation  was  not  made  known  to  the  convention. 
That  body  was  uncompromisingly  hostile  to  negro  suf- 
frage, as  was  the  convention  in  each  of  the  six  other 
states.^ 

Congress,  by  the  civil  rights  act  of  April  9,  1866,  con- 
ferred citizenship  upon  the  negro.  The  act  was  passed 
over  the  President's  veto.  Texas  adopted  a  new  constitu- 
tion abolishing  slavery. - 

Congress,  on  the  13th  of  June,  passed  a  joint  resolution 
known  as  the  fourteenth  amendment  and  submitted  it  to 
the  states.  It  defined  who  are  citizens  of  the  United 
States  and  of  the  states,  provided  for  the  apportionment 
of  representation  among  the  whole  number  of  persons  in 
each  state,  disfranchised  classes  of  persons  who  had  par- 
ticipated in  the  rebellion,  guaranteed  the  validity  of  the 
public  debt,  and  declared  illegal  and  void  all  debts,  obli- 
gations, and  claims  incurred  in  aid  of  the  rebellion  or  for 
the  loss  or  emancipation  of  any  slave. 

Congress  gave  negroes  in  the  District  of  Columbia  the 
right  to  vote,  passing  the  act  over  the  President's  veto.^ 
A  few  days  later,  Congress  enacted  that  in  territories  of 
the  United  States  thereafter  organized,  the  right  to  vote 
should  not  be  denied  on  account  of  race,  color,  or  previous 
condition  of  servitude* 

The  act  was  extended  to  Nebraska  as  a  condition  of  its 
admission.  The  people  of  that  state  had  submitted  a  con- 
stitution to  Congress  by  which  the  suffrage  was  restricted 
to  white  males.  The  legislature  of  the  territory,  on  the 
20th  of  February,  formally  complied  with  the  condition, 
and  the  state  was  admitted  by  proclamation  of  the  Presi- 
dent March  i,  1867.  Its  motto  was  significant  of  the 
great  issue  of  the  times :    "  Equality  before  the  law."  ^ 

^  For  a  detailed  account  of  the  "restoration"  conventions  and  their 
work,  see  the  author's  "Constitutional  History  of  the  United  States, 
1765-1805,"  vol  iii,  p.  157-232. 

2  Statutes  nt  T-nrsje,  vol.  xiv,  p.  27. 

'  January  8,  1S67,  Id.  p.  375. 

♦  Tanuarv  25,  Td.  379. 

^  id.  p.  391  ;  Richardson  vol.  vi,  p.  516. 


THE    UNITED    STATES  285 

On  the  day  following  the  admission,  the  negro  suffrage 
act  of  January  25th  was  extended  to  apply  to  the  territory 
of  Montana.^ 

Congress  abolished  and  forever  prohibited  peonage  in 
the  United  States,  and  on  the  same  day  passed  the  first 
of  the  notable  reconstruction  acts  by  which  the  southern 
states  were  directed  to  establish  governments  republican 
in  form.  Every  male  person  twenty-one  years  of  age  or 
more,  a  citizen  of  the  United  States,  was  made  an  elector 
in  the  state  in  which  he  resided.  The  governments  insti- 
tuted in  the  states  under  the  "  restoration  "  constitutions 
were  declared  illegal.  Defects  in  the  reconstruction  act 
were  later  corrected  by  Congress,  by  supplementary  acts 
chiefly  directed  to  the  manner  of  calling  the  constitutional 
conventions,  and  to  the  ratification  of  the  new  constitu- 
tions, which  should  be  by  a  majority  of  the  votes  cast. 
The  important  features  of  congressional  reconstruction 
were  the  extension  of  the  suffrage  to  the  negroes  within 
the  states  affected  by  the  act,  and  also  the  extension  to 
negroes  of  the  right  to  hold  office.  It  was  by  authority  of 
these  acts  that  negroes  lately  slaves,  in  the  South,  for  the 
first  time  voted  and  held  office.  By  the  first  constitution  of 
North  Carolina,  1776,  and  by  that  of  Tennessee,  1796,  free 
persons  of  color  were  entitled  to  vote.  The  privilege  was 
abrogated  in  the  latter  state  in  1834,  and,  in  the  former, 
a  year  later.  There  is  no  evidence  that  the  technical  in- 
clusion of  free  negroes  as  voters  in  these  states  was  other 
than  by  accident  and  inadvertence.  The  reconstruction 
acts  wrought  an  innovation  in  the  suffrage  and  in  the 
apportionment  of  representation.^ 

On  July  28,  1868,  the  Secretary  of  State  proclaimed  that 
the  fourteenth  amendment  had  been  ratified.  It  was  re- 
jected by  Delaware,  Maryland,  Kentucky,  Mississippi, 
and  Texas.  During  the  years  1867  and  1868  the  late 
Confederate  states  framed  new  constitutions  which  granted 
the  suffrage  to  citizens  of  the  United  States,  and  appor- 
tioned representation  without  discrimination  on  account 
of  race,  color,  or  previous  condition  of  servitude.     Mich- 

1  Statutes  at  Large,  vol.  xiv,  p.  426. 

2  "March  2,  Id.  pp.  428-430,  546 ;  July  19,  Id.  vol.  xv,  p.  14  ;  March  23, 
Id.  p.  2;  1868,  March  11,  Id.  p.  41. 


b 


286     A    CONSTITUTIONAL   HISTORY    OF 

igan,  at  the  April  election  of  1868,  rejected  a  new  con- 
stitution which  conferred  the  suffrage  on  the  negro;  the 
question  of  suffrage  extension  being  a  special  issue.  By 
the  adoption  of  the  fourteenth  amendment,  the  suffrage 
clauses  in  state  constitutions  were  not  changed.  Thus 
the  anomaly  was  presented  of  negro  suffrage  in  the  South, 
and  exclusive  white  suffrage,  except  in  three  states,  at  the 
North.  The  negro  at  the  South  was  a  voter  by  force  of 
the  reconstruction  acts. 

Would  he  remain  a  voter  if  they  should  be  repealed  ?  ^ 
Congress  passed  the  resolution  known  as  the  fifteenth 
amendment,-  which  declares  that  the  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  by  any  state  on  account  of  race, 
color,  or  previous  condition  of  servitude.  On  the  30th  of 
March,  1870,  the  Secretary  of  State  proclaimed  that  it  had 
been  ratified  by  the  requisite  number  of  states.  It  was 
rejected  by  Delaware,  Maryland,  Kentucky,  Tennessee, 
Oregon,  and  California.  By  virtue  of  this  amendment 
the  discriminating  word  "  white  "  as  a  description  of  a 
voter  in  state  constitutions  was  nullified. 

The  fourteenth  amendment  defined  who  are  citizens 
of  the  United  States,  and  its  main  purpose  was  to  establish 
the  citizenship  of  the  negro.  It  did  not  transfer  to  the 
national  government  the  entire  domain  of  civil  right  bc- 

1  For  a  detailed  account  of  reconstruction,  see  the  author's  "Consti- 
tutional History  of  the  United  States,  1765-1895,"  vol.  iii,  l^ook  vi. 

The  state  of  public  opinion  regarding  negro  suffrage  at  this  time 
may  be  known  from  the  platforms  of  political  parties  as  formulated 
at  the  state  conventions.  The  Rei)ublicans  favored,  the  Dernocrats 
opposed,  the  fourteenth  amendment.  .See  Republican  conventions  at 
Concord,  N.  H.,  January  3,  1866;  at  Montpelier,  Vt.,  June  20,  1S66;  at 
Syracuse,  N.  Y.,  September  5,  1S67  ;  at  Springfield,  111.,  August  8,  1867; 
at  Topeka,  Kan.,  September  5,  1867  ;  at  Madison,  Wis.,  September  4, 
1867;  at  Williamsport,  Pa.,  June  26,  1867;  at  Worcester,  Mass.,  Sep- 
tember 12,  1867  — all  approve  the  policy  of  Congress.  See  Democratic 
conventions,  at  Concord,  N.  H.,  February  7,  1866;  Nashville,  Tenn., 
February  22,  1866;  Montpelier,  Vt.,  June  29,  1866;  Albany,  N.  Y.,  Sep- 
tember II,  1867  ;  Columbus.  O.,  May  24,  1867  ;  Springfield.  Mass.,  August 
29,  1867;  Topeka,  Kan.,  January  10,  1867;  Madison,  Wis.,  September 
II,  1867  ;  Ilarrisburg,  Pa.,  June  ii,  1867;  Worcester,  Mass.,  October  14, 
1867  —  all  disapproving  that  policy,  and  especially  the  extension  of  the 
suffrage  to  the  negro. 

The  platforms  are  given  in  the  Tribune  Almanac,  1866-1867. 

2  1869,  February  27  ;  Globe,  1564. 


THE   UNITED    STATES  287 

longing  previously  to  the  states.^  The  fifteenth  amend- 
ment did  not  confer  the  suffrage  on  any  person ;  it  forbids 
discrimination  against  a  citizen  on  account  of  race,  color, 
or  previous  condition  of  servitude.  Excepting  qualifica- 
tions within  these  three,  a  state  may  impose  any  in  regu- 
lating the  suffrage. - 

The  civil  reorganization  outlined  by  this  brief  summary 
of  the  organic  changes  in  the  plan  of  government  in 
America  from  1865  to  1870  constitutes  the  most  critical 
experiment  ever  made  by  a  free  people.  If  we  inquire 
for  the  reasons  for  this  innovation,  we  must  turn  to  the 
principle  of  "  equality  before  the  law,"  which  from  the 
beginning  was  recognized  as  fundamental  in  the  American 
system.  A  later  generation  has  spoken  with  disapproba- 
tion of  the  congressional  policy  of  reconstruction.  It  has 
been  said  that  the  Congress  which  executed  that  policy 
were  actuated  by  selfish  party  motives;  that  they  failed 
to  comprehend  the  incapacity  of  the  negro  for  citizenship, 
and,  consequently,  by  making  him  a  citizen  and  endowing 
him  with  the  suffrage  they  imperilled  republican  institu- 
tions. This  they  did  by  forcing  interracial  hostility  at 
the  South. 

Of  the  nature  of  public  opinion  in  America  at  the  close 
of  the  civil  war  respecting  the  negro,  there  is  ample  evi- 
dence. The  republican  party  was  dominant,  and  its  creed 
was  sacred  to  its  members.  Its  faith  in  the  capacity 
of  the  negro  to  do  the  duties  of  a  citizen  was  active 
and  immeasurable.  Its  humanitarianism  was  unbounded. 
The  rights  of  man  so  exalted  in  republics,  this  party  be- 
lieved, included  the  negro.  Participation  in  government, 
education,  protection,  industry,  would  raise  the  negro  in 
the  scale,  even  out  of  the  awful  degradation  of  slavery. 

But  there  was  another  reason,  —  a  reason  enforced  upon 
Congress  by  the  overwhelming  testimony  of  innumerable 
witnesses,  —  the  testimony  of  the  reign  of  crime  against 
the  negro  in  the  South  at  the  close  of  the  war  and  for 
ten  years  thereafter.  A  portion  of  this  testimony  is  pre- 
served in  some  forty  stout  octavo  volumes,  published  by 
Congress  among  the  records  of  the  government.     It  is 

1  Slaughter  House  Cases,  i6  Wallace,  36.  2  See  pp.  309-310. 


288     A    CONSTITUTIONAL   HISTORY    OF 

with  difficulty  that  one  now  perusing  these  terrible  records 
can  believe  their  truthfulness.  The  crimes  perpetrated, 
the  cruelties  practised,  the  exquisite  miseries  wrought 
upon  negroes  suggest  the  horrors  of  the  French  revo- 
lution. Face  to  face  with  the  condition  of  the  negro, 
Congress,  conscious  of  its  responsibility,  adopted  a  policy 
which  it  believed  would  restore  order,  by  enabling  the 
negro  to  protect  himself.  To  do  this  he  must  be  armed 
with  the  rights  of  citizenship.  In  a  representative  democ- 
racy like  ours  there  was  no  other  policy  to  follow.  In  a 
monarchy,  or  in  an  aristocracy,  the  protection  of  the  negro 
might  have  been  entrusted  to  a  class,  —  as  the  ruling 
house,  or  the  nobility.  In  a  representative  democracy 
each  man  must  be  a  citizen  and  be  able  to  protect  himself. 

It  has  been  said  in  criticism  of  Congress,  that  in  extend- 
ing the  suffrage  to  the  negro  the  privilege  might  have  been 
safeguarded  by  educational  or  property  qualifications,  or 
by  both.  But  to  impose  either  qualification  was  practically 
impossible.  Property  qualifications  had  been  tried  during 
the  earlier  years  of  the  states,  and  by  common  consent  had 
after  some  thirty  years'  trial  been  abolished.^  The  oppo- 
nents of  negro  suffrage  in  1866  did  not  advocate  educa- 
tional or  property  qualifications  for  the  negro.  This  oppo- 
sition was  grounded  on  the  theory  that  the  negro  is 
incapable  of  performing  a  citizen's  duties.  Neither  prop- 
erty nor  education  would  fit  him  for  citizenship.  He  was 
a  negro. 

Of  the  reconstruction  constitutions  one,  and  one  only, 
—  that  of  Mississippi  of  1868,  —  forbade  an  educational 
qualification  for  the  negro.  The  South  Carolina  conven- 
tion of  that  year  discussed  the  question  of  imposing  such 
a  qualification,  but  unanimously  agreed  that  the  negro, 
after  exclusion  from  civil  and  political  rights  for  untold 
ages,  now  having  a  chance  to  possess  the  suffrage,  should 
have  it  with  one  qualification  only,  —  manhood. 

Had  Congress  rejected  the  southern  constitutions  of 
1867-1868  because  they  did  not  impose  educational  or 
property  qualifications  on  the  negro,  and  had  it  returned 

^  For  a  detailed  account  of  these  qualifications  and  of  their  abolition, 
see  the  author's  "Constitutional  History  of  the  American  People,  1776- 
1850,"  vol.  i. 


THE   UNITED    STATES  289 

them  for  amendment,  it  must  in  equity  have  prescribed 
that  whatever  quaUfication  was  required  of  the  negro 
should  be  required  of  the  white  man.  This  would  have 
evoked  a  race  war,  for  the  poor  whites  at  the  South  would 
have  resented  the  discrimination,  and  the  intelligent  and 
wealthy  whites  would  have  sided  with  their  own  race. 
History  has  already  exemplified  this  truth. 

Of  the  selfish  motives  of  the  republican  party  in  ex- 
tending the  suffrage  to  the  negro  there  can  be  no  reason- 
able doubt.  The  party  considered  the  negro  race  as  the 
ward  of  the  nation,  and  believed  that  the  nation  was 
safest  in  republican  hands.  The  astute  Thaddeus  Stevens 
plainly  told  Congress  that  it  must  make  its  work  of  recon- 
struction secure  by  passing  the  fourteenth  amendment 
ere  it  was  too  late;  and  a  like  warning  was  spoken  by 
other  leaders  of  the  party  when  the  fifteenth  amendment, 
its  passage  doubtful,  was  before  the  House.  That  the 
party  in  power  at  the  close  of  the  war  sought  to  perpetuate 
its  power  is  analogous  to  the  conduct  of  every  party  in 
power  at  any  time  in  the  history  of  constitutional  govern- 
ment. 

Had  the  democratic  party  been  in  power,  it  would  have 
refused  to  extend  the  suffrage  to  the  negro,  among  other 
reasons,  for  the  purpose  of  perpetuating  its  control  of  the 
government.  For  this  selfish  reason  slavery  was  de- 
fended and  strengthened  by  every  party  in  power  down  to 
the  election  of  Abraham  Lincoln. 

It  has  been  said  that  Congress,  at  the  close  of  the  civil 
war,  should  have  applied  a  policy  of  gradually  admitting 
the  negro  to  citzenship.  Could  a  policy  like  that  have 
been  applied  to  the  negro?  One  of  gradual  emancipa- 
tion, instead  of  immediate  and  unconditional  freedom  ? 
Critics  living  in  these  later  days  claim  to  understand  the 
question  better  than  did  Congress  in  1865. 

One  fatal  element  of  the  policy  of  graduated  citizenship 
is  the  residuum  or  remainder  of  the  negro  race  not  ad- 
mitted to  citizenship.  In  what  civil  or  political  state  would 
they  be  left?  In  a  representative  democracy  there  can 
be  freemen  and  slaves,  but  can  there  be  freemen  amenable 
to  the  power  in  the  state  who  are  not  citizens?  What 
v^ould  be  the  tendency  of  the  remainder  toward   free- 

19 


290     A    CONSTITUTIONx\L   HISTORY    OF 

dom  and  citizenship  or  toward  slavery?  Racial  hostility, 
if  supported  to  any  degree  by  law  or  public  sentiment, 
forces  the  remainder  inevitably  into  peonism,  or  toward 
slavery.  This  fact  was  exemplified  at  the  South,  and  Con- 
gress abolished  and  prohibited  peonism. 

Slavery  was  an  evil,  and  never  realized  as  so  terrible 
an  evil  until,  having  been  abolished,  the  difficulties  of 
citizenship  were  brought  home  to  the  former  slave.  An 
act  of  Congress  could  not  transform  the  negro  into  a 
new  creature  at  once.  It  could  confer  upon  him  a  mighty 
privilege  which  even  white  men  have  been  known  to  abuse. 
And  it  is  not  strange  that  the  negro  should  be  held  to 
stricter  accountability  for  his  citizenship  than  is  the  white 
man.  This  is  human  nature,  —  or,  at  least,  the  white 
man's  nature.  To  attempt  a  policy  of  gradual  citizenship 
meant  practically  a  return  to  slavery.  There  was  no  safe 
course  for  Congress  other  than  to  treat  the  negro  as  a  man 
and  make  the  best  of  the  consequences. 

Congressional  reconstruction  has  in  later  years  been  the 
object  of  hostile  criticism  by  academic  writers,  by  poli- 
ticians, by  southern  statesmen.  The  objections  emanating 
from  southern  sources  are  entitled  to  respect,  because  the 
problem  is  locally  a  southern  one.  As  a  question  of  rep- 
resentation, it  is  national.  Viewed  as  a  local  problem, 
or  as  a  national  problem,  there  is  no  conclusive  evidence 
that  Congress,  and  successive  congresses  from  1861  to 
1868,  violated  the  principles  of  republican  government 
when  they  adopted  and  executed  that  policy  which  distin- 
guishes the  era  of  reconstruction.  The  stupendous  prob- 
lem which  befell  the  congresses  of  the  reconstruction 
era  classes  the  statesmen  of  that  era  with  the  Fathers. 
That  problem  was  nothing  less  than  an  adjustment  of  pop- 
ular government  to  the  moral  order.  That  era  stands 
out  as  distinct  as  the  era  of  the  revolution.  In  the  evo- 
lution of  government  it  will  forever  stand  as  an  era  of 
organic  changes  comparable  in  the  material  world  to  those 
adaptations  by  which  new  species  come  into  being,  new 
areas  are  occupied  by  living  forms,  and  new  vital  con- 
ditions, which  only  the  fittest  survive,  modify  the  whole 
after  history  of  living  things. 


THE   UNITED    STATES  291 


CHAPTER   Xni 

THE    COMMONWEALTHS 

The  war  between  the  Confederacy  and  the  nation  was 
an  industrial  no  less  than  a  civil  revolution,  and  was  fol- 
lowed during  the  remaining  years  of  the  century  by  notable 
changes  in  the  organic  laws  of  the  states.  Eleven  new 
states  were  admitted  into  the  Union,  forty-seven  constitu- 
tions were  adopted,  and  above  one  hundred  amendments 
were  made,^ 

In  1865  the  former  Confederate  states  responsive  to 
the  proclamations  of  President  Johnson,  adopted  new 
constitutions  for  the  purpose  of  resuming  their  places  in 
the  Union.  These  instruments  excluded  the  negro  race 
from  the  basis  of  representation  and  also  from  the  suf- 
frage, and  on  that  account  were  rejected  by  Congress. 
In  1867-1870  these  states  adopted  constitutions  con- 
forming to  the  reconstruction  acts  of  Congress,  by  which 
discrimination  on  account  of  race,  color,  or  previous 
condition  of  servitude  was  prohibited,  and  the  paramount 
authority  of  the  United  States  was  acknowledged.  The 
right  of  secession  from  the  Union  was  disclaimed.  These 
changes  in  the  organic  laws  of  southern  states  preceded 
the  adoption  of  the  fifteenth  amendment  to  the  national 
Constitution,  and  made  its  ratification  possible.  That 
amendment  annulled  the  effect  of  the  discriminating  word 
"  white  "  found  in  thirty-one  of  the  thirty-seven  state  con- 
stitutions in  force  at  the  time.-  This  was  the  first  and 
only  instance  in  American  history  of  a  change  in  state 

1  From  1S60  to  1870  inclusive,  twenty-one  constitutions  ;  from  1S70  to 
1880  inclusive,  thirteen  constitutions;  from  18S0  to  3890  inclusive,  eight 
constitutions;  from  1890  to  1900  inclusive,  five  constitutions.  For  the 
list  and  that  of  new  states,  see  pp.  301-302,  note. 

2  1868-1870.  Five  of  the  six  constitutions  which  did  not  contain  the 
word  "white  "  were  in  New  England;  the  sixth  was  Kansas. 


292     A   CONSTITUTIONAL   HISTORY    OF 

organic  laws  caused  by  a  change  in  the  Constitution  of  the 
United  States,  affecting  the  elector. 

Reconstruction  is  the  name  given  to  the  change  in 
America  consequent  upon  the  admission  of  the  negro  to 
representation  and  the  suffrage.  Reconstruction  began, 
in  the  states,  with  the  organization  of  West  Virginia  and 
its  adoption  of  a  constitution  in  1863  providing  for  grad- 
ual emancipation.  Less  than  two  years  later,  by  amend- 
ment, it  abolished  slavery.  Missouri  decreed  abolition  in 
1865,  and  was  followed  by  Arkansas,  Virginia,  Louisiana, 
Maryland,  Nevada,  and  Tennessee.  This  action  made 
possible  the  adoption  of  the  thirteenth  amendment  to 
the  national  Constitution,  as  this  accession  to  the  list  of 
free  states  made  the  majority  required  to  ratify  an  amend- 
ment ^  to  the  national  Constitution  abolishing  slavery. 

The  bills  of  rights  in  southern  reconstruction  constitu- 
tions contained  clauses  designed  to  perpetuate  the  imme- 
diate results  of  the  war,  —  as  for  example  in  Mississippi, 
1868,  whose  bill  of  rights  forbade  educational  qualifica- 
tions for  the  elector,  the  evident  purpose  being  to  secure 
the  full  negro  vote.  An  educational  test  would  have  re- 
stored the  state  to  the  exclusive  control  of  the  whites,  and 
given  the  Democrats  the  ascendency.  The  extension  of 
the  suffrage  to  the  negro  was  not  carried  without  a  con- 
test, even  in  the  free  states.  The  former  Confederate 
states  were  powerless  to  prevent  the  innovation,  and  re- 
construction was  forced  upon  them  by  federal  authority. 
At  the  North  the  procedure  was  wholly  different.  Con- 
gress had  no  power  to  change  the  suffrage  laws  of  northern 
states,  and  the  reconstruction  acts  of  1867  did  not  apply  to 
them.  Though  intolerant  of  slavery,  the  people  in  the 
northern  states  were  not  wholly  favorable  to  negro  suf- 
frage. New  York,  in  1821,  had  extended  the  suffrage  to 
the  negro,  but  discriminated  against  him  by  means  of  a 
property  qualification.  In  1868,  at  the  time  of  reconstruc- 
tion, the  people  of  this  state  refused,  by  a  heavy  majority, 
to  abolish  this  discriminating  qualification.  In  the  pre- 
ceding year,  the  people  of  Michigan  rejected  a  new  consti- 
tution  which   purported   to   confer  the  suffrage  on  the 

'  For  a  detailed  account  of  reconstruction,  see  the  author's  third 
volume  of  "  The  Constitutional  History  of  the  United  States,  1765- 1895." 


THE   UNITED    STATES  293 

negro.  Later,  when  the  fifteenth  amendment  —  the  suf- 
frage amendment  —  to  the  national  Constitution  was  be- 
fore the  states  for  ratification,  it  was  rejected  by  Oregon, 
CaHfornia,  New  Jersey,  and  Ohio,  and  New  York  with- 
drew its  ratification.  Ohio  and  New  Jersey  later  withdrew 
their  objections.  The  border  states,  —  Delaware,  Mary- 
land, Kentucky,  and  Tennessee,  —  which  were  unaffected 
by  the  reconstruction  acts  of  Congress,  promptly  rejected 
the  amendment.  Here  were  nine  states,  of  the  thirty-seven 
comprising  the  Union  at  the  time  of  reconstruction,  hostile 
to  negro  suffrage  and  able  to  record  their  hostility  by  their 
treatment  of  the  fifteenth  amendment.  The  ten  states 
which  had  belonged  to  the  Confederacy  were  bitterly  hos- 
tile to  negro  suffrage.  Thus  nineteen  of  the  thirty-seven 
members  of  the  Union,  in  1870,  were  opposed  to  negro 
suffrage;  the  changed  attitude  in  three — New  York,  New 
Jersey,  and  Ohio  —  being  brought  about  by  a  slender 
majority.  It  might  well  be  questioned  whether,  after 
federal  troops  were  withdrawn  from  the  South,  and  the 
states  were  each  again  free  and  independent,  those  hostile 
to  negro  suft'rage  might  not  adopt  new  constitutions  which 
would  eliminate  the  negro  from  the  list  of  voters.  In 
northern  states  the  negro  population  was  too  small  to 
compel  such  a  constitutional  change.  If  in  any  state  of 
New  England,  or  of  the  northwest,  three  fifths  of  the 
population  had  been  negroes,  would  not  the  provocation 
to  abolish  negro  suft'rage  have  been  the  same  as  in  South 
Carolina,  Mississippi,  or  Louisiana? 

Evidently  the  principal  civil  and  political  change 
wrought  by  the  war  —  the  reconstruction  of  the  state 
governments  by  extending  the  elective  franchise  to  the 
negro  —  rested,  in  some  of  the  states,  upon  an  unstable 
foundation.  The  absence  of  negroes  at  the  North  relieved 
that  part  of  America  of  the  burden  of  the  race  problem. 

After  1875  the  reconstruction  constitutions  at  the 
South  began  to  give  place  to  constitutions  by  which 
white  supremacy  supplanted  negro  domination.  In 
1890  Mississippi  promulgated  a  new  constitution, 
the  ostensible  purpose  of  which  was  to  disfranchise 
the  negro  and  to  give  the  control  of  public  affairs 
forever    to    the    whites.      The    method    adopted    was, 


294     A    CONSTITUTIONAL    HISTORY    OF 

in  substance,  the  exclusion  of  the  negro  by  an  educational 
test  and  by  registration,  by  which  the  control  of  elections 
was  placed  in  the  hands  of  white  men.  Two  years  later, 
the  constitutionality  of  the  suffrage  clause  was  sustained 
by  the  supreme  court  of  the  state. 

South  Carolina  followed,  in  1895,  with  a  new  constitu- 
tion, similar  to  that  of  Mississippi.  Louisiana,  in  1898, 
adopted  a  new  constitution  which  contained  a  more  rigor- 
ous article,  excluding  negroes  from  voting,  the  most 
elaborate  provision  on  the  suffrage  thus  far  adopted  by  an 
American  state.  In  addition  to  registration,  the  voter 
must  possess  an  educational  qualification,  or  in  defect 
thereof,  a  property  qualification.  The  descendants  of 
persons  who  were  electors  on  or  before  January,  1867,  were 
exempted  from  the  requirements  of  property  or  educa- 
tion. This  is  the  celebrated  "  grandfather  clause."  In 
1896  the  North  Carolina  legislature  submitted  a  similar 
clause  to  the  people  of  that  state,  and  in  1902  the  Virginia 
convention  promulgated  a  new  constitution,  on  which  it 
nad  been  engaged  over  a  year,  containing  a  suflfrage  pro- 
vision made  after  the  Louisiana  model.  Alabama,  in  1901, 
in  a  new  constitution,  provided  for  the  limitation  of  the 
suffrage,  in  a  manner  analogous  to  that  pursued  in  Mis- 
sissippi. Thus  within  a  single  decade,  six  states,  in  which 
the  problem  of  negro  suffrage  was  a  vital  issue,  repudiated 
it  as  far  as  was  thought  possible  without  violating  the 
fifteenth  amendment  to  the  national  Constitution. 

The  extension  of  the  right  to  vote  to  the  negro,  in  1868- 
1870,  was  made  with  enthusiasm  by  the  republican  party, 
then  dominant  in  the  Union.  It  was  a  sign  of  the  times 
that  in  1 890-1 895  no  political  party  made  an  issue  of  the 
repudiation  of  negro  suffrage  and  the  elimination  of  the 
negro  from  the  government  by  southern  states.  Theories 
respecting  the  negro,  which  filled  the  public  mind  at  the 
time  of  tlie  civil  war,  have  been  quite  abandoned,  and  the 
public  mind  is  now  resting  in  the  belief  that  the  solution 
of  the  negro  problem  is  in  the  hands  of  the  negro  himself, 
and  of  the  whites  in  those  states  in  which  the  African  race 
is  a  civil,  political,  and  industrial  factor.  The  extension  of 
the  suffrage  to  the  negro  was  the  most  remarkable  event 
in  the  civil  history  of  America,  and  ilic  administration  of 


THE   UNITED    STATES  295 

negro  suffrage  remains  one  of  the  most  difficult  problems 
in  state  government.  If  the  discussions  in  the  conven- 
tions of  the  states  which  have  in  recent  years  attempted 
limited  negro  suffrage  are  indicative  of  public  opinion  at 
the  South,  the  negro  man  who  is  industrious,  moral,  and 
intelligent  will  have  no  difficulty  in  being  registered  as 
a  voter  and  in  voting.  Granting  that  injustice  has  been 
done  to  the  African  race,  it  is  believed,  at  least  in  the 
South,  that  the  negro  himself  must  bear  his  share  of  the 
burden,  which  his  race,  in  the  aggregate,  impose  upon 
society. 

The  people  of  Mississippi,  in  their  constitution  of  1890, 
included  in  its  bill  of  rights  a  declaration  of  paramount 
allegiance  to  the  United  States,  and  a  disclaimer  of  the 
right  of  secession.  No  more  indubitable  proof  of  the 
general  acceptance  of  national  sovereignty  has  been  af- 
forded by  any  other  state,  unless  it  be  by  Nevada  in  1864 ; 
but  the  constitution  of  this  state,  which  while  declaring 
the  sovereignty  of  the  nation  proclaims  also  the  right  of 
the  United  States  to  coerce  a  state,  was  made  amidst  the 
agitation  of  the  civil  war,  and  its  language  has  not  been 
adopted  by  any  other  commonwealth.  The  insertion  of 
the  doctrines  of  national  sovereignty  and  paramount  alle- 
giance into  the  bills  of  rights  of  Nevada  and  Mississippi 
suggests  the  permanency  and  importance  of  these  doc- 
trines ;  for  a  bill  of  rights  becomes  the  receptacle  for  the 
preservation  of  elemental  political  truths. 

No  less  significant  was  a  clause  in  the  Wyoming  bill  of 
rights,  of  1890,  which  declares  that  civil  and  political 
rights  should  be  conferred  without  respect  of  race  or  sex. 
It  was  in  New  York,  in  1845,  that  the  agitation  to  extend 
the  suffrage  to  women  began.  Within  five  years  it  over- 
spread adjoining  states,  but  was  checked  by  the  conser- 
vative spirit  of  the  times.  The  agitation  then  overspread 
the  West,  but  for  nearly  fifty  years  won  no  remarkable 
success.  The  advocates  of  woman  suffrage  during  this 
time  won  the  right  to  elect  women  to  school  offices,  in 
eighteen  states ;  the  right  of  women  to  vote  on  the  liquor 
question,  in  several  states,  and  to  vote  and  hold  any  office 
in  one  state,  —  Wyoming.  Though  the  agitation  ex- 
tended into  the  South,  only  two  states  —  Louisiana  and 


296     A    CONSTITUTIONAL   HISTORY    OF 

Tennessee  —  granted  women  the  right  to  hold  school 
offices.  The  attitude  of  the  South  was  distinctly  hostile 
to  the  movement.  Agitation  reached  its  climax  in  1889, 
when  six  new  states  in  the  Northwest  were  framing  con- 
stitutions.^ There  has  been  less  opposition  to  the  ad- 
mission of  women  to  candidacy  for  office  than  to  her 
admission  to  the  suffrage. 

Some  new  features  of  bills  of  rights,  adopted  in  the 
later  years  of  the  nineteenth  century,  indicated  the  course 
and  the  character  of  public  thoughts.  Notably  in  the  con- 
stitutions of  the  Northwest  these  signs  of  the  times  pointed 
the  way  men  and  things  were  going.  Thus  the  declaration 
of  the  rights  of  labor,  of  the  obligation  of  the  state  to 
protect  labor  and  the  industrial  interests  of  the  people, 
the  declaration  against  monopolies  and  combinations  of 
capital  injurious  to  the  public,  were  statements,  in  brief,  of 
economic  relations  which,  if  the  earlier  constitutions  be 
in  evidence,  were  not  suspected  during  the  first  century 
of  the  republic.  A  perusal  of  the  bills  of  rights  in  con- 
stitutions adopted  after  1865  cannot  fail  to  establish  the 
conviction  that,  as  compared  to  the  years  before  the  civil 
war,  the  later  years  have  been  important  as  registers  of 
great  industrial  changes. 

We  are  prone  to  measure  the  progress  of  America  solely 
by  the  political  standards  of  the  time.  A  more  accurate 
measurement  is  the  condition  of  labor  from  time  to  time. 
That  an  industrial  revolution  has  been  in  progress,  these 
organic  laws  attest.  The  insertion  of  industrial  and  eco- 
nomic clauses  in  the  bills  of  rights  indicates  the  impor- 
tance attached  to  them.^ 

The  limitation  of  legislative  power  was  carried  further 
than  in  the  earlier  constitutions  of  the  century,  and  chiefly 
by  the  lengthening  of  the  list  of  subjects  on  which  the 
legislature  should  enact  no  special  laws.  In  the  consti- 
tutions framed  after  1880,  the  list  included  upwards  of 
one  hundred  mala  prohibita,  as  exemplified  by  the  con- 
stitutions of  the  states  of  the  Northwest  at  the  time  of 

1  The  ablest  defence  of  woman  suffrage  was  made  by  George  William 
Curtis  in  the  New  York  Constitutional  Convention  of  1S67.  See  its 
Debates.     Compare  the  discussion  with  that  in  Kentucky,  1891. 

*  See  the  constitutions  adopted  in  the  Northwest,  1SS9-1890. 


THE   UNITED    STATES  297 

their  admission  into  the  Union. ^  Evidently  the  people  had 
suffered  at  the  hands  of  legislatures  and  were  struggling 
to  prevent  farther  confusion  in  the  state,  such  as  is  bred 
by  a  multiplicity  of  special  and  private  acts.  The  prin- 
ciple insisted  upon  was  that  laws  should  have  general 
application,  and  that  each  law  should  have  a  single  pur- 
pose, plainly  stated  in  the  title.  Until  the  adoption  of  this 
principle,  the  title  of  an  act  was  seldom  indicative  of  its 
contents ;  the  phrase  "  and  for  other  purposes  "  covering 
heterogeneous  provisions. 

To  prevent  the  abuse  of  state  credit,  the  constitutions 
framed  after  1870  uniformly  specified  the  limit  of  indebt- 
edness for  the  state,  and,  in  some  instruments,  the  limit  for 
counties  and  municipalities.  A  gross  amount  was  named, 
or  a  ratio  of  taxable  property.  More  perfect  provision 
was  made  for  sinking  funds.  In  some  states,  public  in- 
debtedness could  not  be  increased  without  the  consent  of 
the  electors,  and  in  Rhode  Island  -  and  Utah  ''  the  consent 
must  be  that  of  a  majority  of  the  electors  who  paid  taxes 
on  real  property.  This  small  step  toward  the  revival  of 
a  property  qualification  recalls  the  constitutions  of  the 
eighteenth  century. 

Over-legislation  had  multiplied  statute  books  and  had 
confused  public  affairs.  To  check,  if  not  to  remedy  the 
evil,  the  terms  of  legislatures,  in  many  states,  were  made 
biennial,  and  the  sessions  were  shortened  —  in  some  cases 
to  sixty,  and  even  to  forty  days.  Extra  sessions  were  dis- 
couraged by  the  provision  that  the  members  should  serve 
without  pay  or  for  a  smaller  remuneration  than  for  the 
regular  session.  During  the  closing  days  of  a  session  no 
new  bills  could  be  introduced.  The  ancient  distinction 
between  the  Houses  —  the  exclusive  power  of  the  lower 
to  originate  money  bills  —  was  abolished,  notably  in  the 
new  states;  and  so  slight  was  the  demarcation  of  func- 
tions between  the  two  Houses  that  the  adoption  of  the  uni- 
cameral system  was  discussed  at  length  in  several  states.^ 

1  See  North  Dakota,  South  Dakota,  Montana,  Idaho,  Washington, 
Wyoming;  also  Pennsylvania,  1893;  ^^w  York,  1894,  etc. 

2  Amended  constitution  of  1842. 

8  Constitution  of  1S96.     See  also  Colorado  and  Texas,  1S76. 

*  E.  g.,  North  Dakota,  1S89;  see  Indiana  Convention  Debates,  1851. 


298     A    CONSTITUTIONAL   HISTORY    OF 

The  rare  use  of  the  power  of  impeachment  and  the  similar 
character  of  legislative  work  done  in  the  respective  Houses 
quite  obliterated  from  the  popular  mind  memory  of  the 
traditional  differences  between  House  and  Senate.  A  state 
may  have  the  unicameral  system  in  fact  and  the  bicameral 
in  name. 

The  distinctively  new  feature  of  these  organic  laws  was 
their  emphasis  of  the  rights  of  the  people  to  local  govern- 
ment ;  that  is,  the  government  of  counties,  townships,  and 
cities.  These  civil  units  had  long  suffered  from  special 
legislation,  and  were  now  made  the  object  of  constitutional 
care.  Long  articles  now  provided  for  their  welfare,  and 
administrative  oversight  was  carried  into  detail.  New 
official  bodies  were  established  to  care  for  them,  and  their 
quasi-independence  was  guarded.  Perhaps  no  new  feature 
in  state  government  is  more  significant  than  the  de- 
velopment of  local  administration.  As  cities  derive  their 
charters  from  legislatures,  —  and  a  city  charter  is  only 
a  general  law  of  the  commonwealth,  —  the  state  constitu- 
tions throw  little  light  on  municipal  affairs.  Their  history 
is  one  of  administration. 

With  the  more  perfect  understanding  of  local  govern- 
ment there  came  the  creation  of  numerous  administrative 
boards  and  commissions,  whose  members  were  elected  by 
the  people.  Local  offices  steadily  multiplied,  and  the  local 
budget  swelled  proportionally,  as  the  increase  of  taxes  duly 
proved.  The  cost  of  the  state  governments  has  increased 
more  rapidly  than  population.  Though  legislative  power 
was  limited,  the  limitation  was  not  so  much  the  denial  of 
authority  as  the  prescriptive  law  that  authority  should 
be  exercised.  Legislatures  are  no  less  powerful  to-day 
than  they  were  in  the  eighteenth  century ;  they  are  now 
required  to  make  laws  more  in  conformity  to  economic 
principles.    It  is  the  name,  not  the  King,  that  has  changed. 

The  later  constitutions  apply,  in  many  details,  the  prin- 
ciple adopted  before  the  civil  war  of  admitting  the  execu- 
tive to  responsible  participation  in  the  public  business, 
but  with  notable  variation  from  the  earlier  method.  It 
was  discovered  that  the  pardoning  power,  vested  without 
restriction  in  the  governor,  was  abused,  and  to  remedy 
the  evil,  this  power  was  confided  to  a  board  of  pardons, 


THE   UNITED    STATES  299 

the  governor  being  constituted  a  member.  Surely  this 
would  diminish  the  chances  that  an  offender  would  escape 
through  the  exercise  of  executive  clemency,  —  thinly  veil- 
ing political  favoritism.  Boards  of  pardon,  by  dividing 
responsibility,  have  given  no  better  satisfaction  than  gov- 
ernors. The  inroads  of  the  democratic  spirit  into  the  do- 
main of  justice  have  devastated  and  debauched  the  public 
mind.  American  criminal  procedure  has  become,  too  often, 
a  travesty  of  justice.  The  criminal  who  at  last  is  con- 
demned, in  open  court,  counts  confidently  on  the  reversal 
of  the  decision  by  a  higher  court,  or  by  executive  respite, 
or  by  a  board  of  pardons,  whose  members  are  peculiarly 
exposed  to  political  influences.  The  confusion  of  judicial, 
executive,  and  administrative  functions,  in  criminal  cases, 
is  the  principal  defect  in  many  of  the  later  constitutions, 
or  in  the  practice  which  has  sprung  up  under  them. 

In  the  executive  department  the  later  differ  from  earlier 
organic  acts,  in  the  degree  rather  than  the  kind  of  changes 
made.  A  longer  term,  a  higher  salary,  a  larger  power  of 
participating  in  state  affairs  are  given  later  governors. 
To  be  chosen  governor  of  a  great  state  like  New  York 
or  Ohio,  amidst  profound  political  excitement,  and  by  a 
heavy  vote,  as  was  Grover  Cleveland,  or  Rutherford  B. 
Hayes,  at  once  raises  the  new  executive  to  the  rank  of  a 
presidential  candidate.  The  power  and  prestige  of  the 
governor  are  a  copy,  in  miniature,  of  that  of  the  Presi- 
dent. The  later  constitutions  took  from  the  legislature 
many  appointments  and  vested  them  in  the  governor ;  and 
the  numerous  boards  and  commissions,  whose  duties  are 
not  local,  were  made  appointive  by  the  governor,  or  elec- 
tive by  the  people,  in  about  equal  proportion.  With  the 
enormous  growth  of  wealth,  the  American  people  became 
fond  of  luxury  and  display ;  habits  much  in  evidence  in 
the  glare  and  lavishness  of  political  expenditure.  A  close 
inspection  of  state  expenditures  reveals  ample  appro- 
priations to  maintain  executive  state.  The  governor's 
mansion,  the  bill  for  supplies  and  perquisites,  and  appro- 
priations for  extraordinary  expenses,  are  signs  that  the 
chief  executive  of  an  American  state,  in  the  twentieth 
century,  is  a  more  portentous  personage  than  was  his 
predecessor  in  the  eighteenth  century. 


300     A    CONSTITUTIONAL    HISTORY    OF 

In  the  judicial  department  democracy  continued  the 
changes  introduced  before  the  war.  No  new  state  estab- 
Hshed  an  appointive  judiciary.  The  later  constitutions  are 
remarkable  for  the  multiplicity  of  courts  they  establish, 
for  the  short  term  of  the  judges,  and  for  the  meagreness 
of  their  salaries.  In  many  states  a  check  on  appeals  was 
introduced  by  prescribing  the  monetary  limit  of  jurisdic- 
tion, in  civil  cases,  for  the  several  inferior  courts. 

Pennsylvania  ^  and  New  York,^  when  forming  new  con- 
stitutions, sought  to  combine  the  advantages  of  the  ap- 
pointive and  elective  system  by  instituting  a  long  term 
for  supreme  court  judges,  —  a  term  practically  equivalent 
to  one  for  life,  but  subject  to  popular  election ;  but  the 
precedent  was  not  followed  by  other  states.  The  multi- 
plication of  courts,  the  nomination  of  judges  by  party 
conventions,  and  the  too  frequent  miscarriage  of  justice 
by  the  misuse  of  the  jury-system  and  the  technicalities  of 
law,  have  seriously  injured  the  reputation  of  American 
courts  among  the  people  and  have  demoralized  society. 
Whether  the  demoralization  is  in  the  character  of  the 
people,  or  is  due  to  the  mere  mechanics  of  government, 
may  well  be  considered.  The  social  fact  is  of  the  in- 
creased and  increasing  contempt  of  law  and  of  courts. 

The  favorite  theory  of  the  founders  of  the  republic,  in 
the  eighteenth  century, — that  of  the  mechanics  of  the  state, 
that  is,  its  system  of  "  checks  and  balances,"  —  has  quite 
broken  down  in  practice.  The  economic  and  organic 
state  —  of  which  earlier  statesmen  say  nothing  (and  it  is 
the  state  which  we  know)  —  demands  something  more 
potent  than  a  mechanical  system  of  checks  and  balances 
to  secure  either  private  or  public  welfare. 

The  judicial  department,  or  function,  in  the  American 
commonwealth,  seems  at  present  the  one  most  in  need  of 
reorganization  for  the  purpose  of  securing  justice.  The 
independence  of  the  judiciary,  as  was  pointed  out  long  ago 
in  "  The  Federalist,"  constitutes  its  essential  character ; 
and  every  innovation  which  diminishes  that  independence 
has  wrought  evil  in  public  morals. 

In  the  constitutions  adopted  during  the  thirty  years 

1  1873.  ,  2  i8q4. 


THE   UNITED    STATES  301 

before  the  civil  war,  a  notable  article  was  that  on  state 
banking  and  finance.  On  these  subjects  the  later  instru- 
ments have  nothing.  Since  the  enactment  by  Congress 
in  1863,  and  later,  of  the  national  banking  laws,  the 
whole  subject  has  been  removed  from  state  jurisdiction. 
The  repeal  of  the  national  bank  acts  would  be  followed, 
doubtless,  by  the  revival  of  banking  clauses  in  the  state 
constitutions. 

With  the  attempt  to  adjust  primary  law  to  social  and 
industrial  facts,  the  state  constitutions  have  grown  to 
great  length  and  have  descended  to  petty  details.  A  con- 
stitution now  resembles  a  code.^  Amendment  is  easy  and 
frequent.  The  rigid  written  constitution  is  thus  made 
almost  as  flexible  as  an  unwritten  constitution. 

It  is  chiefly  in  their  administrative  character  that  the 
later  instruments  differ  from  the  earlier.  A  multiplicity 
of  interests  is  the  care  of  the  supreme  law ;  and  in  the 
effort  to  be  explicit,  the  constitution  is  converted  into  an 
administrative  code.  The  later  instruments  greatly  exceed 
in  length  any  of  those  adopted  in  1776. 

Federal  relations  are  more  easily  deducible  from  the 
later  than  from  the  earlier  constitutions,  but  the  deduc- 
tion would  need  the  corrective  of  the  political  history  of 
the  country.  No  insignificant  requirement  of  the  voter 
now  is  that  he  be  a  citizen  of  the  United  States ;  and  no 
insignificant  element  in  state  practice  now  is  the  require- 
ment of  all  officials  to  swear  allegiance  both  to  the  state 
and  to  the  federal  Constitution.  In  the  daily  administra- 
tion of  public  affairs  occur  innumerable  instances  and 
constant  proof  of  the  sovereignty  of  the  nation.  This 
common  understanding  of  federal  relations  in  no  way 
militates  against  the  pacific  and  prosperous  administration 
of  strictly  state  affairs.  At  the  same  time  the  public  mind 
apprehends  to  some  degree  the  freedom  and  independence 
of  each  commonwealth  in  the  Union. ^ 

1  E.  g.,  those  formed  after  1880. 

■^  The  states,  named  in  the  order  in  which  they  ratified  the  national 
Constitution,  or  were  admitted  into  the  Union,  have  framed  constitutions 
as  follows  :  — 

Delaware,  1776,  1792,  1831,  1897  ;  Pennsylvania,  1776,  1790, 1838,  1S73  •, 
New  Jersey,  1776,  1S44;  Georgia,  1777,  1789,  1798,  1S39,  186S,  1877; 
Connecticut,  charter,  1662;    constitution,    1818 ;    Massachusetts,    1780; 


302     A    CONSTITUTIONAL    HISTORY    OF 

But  of  late  years,  notably  since  1865,  the  tendency  of 
government  in  America  has  been  strong  toward  centraliza- 
tion. The  peril  is  that  of  sacrificing  the  advantage,  pos- 
sessed originally  and  primarily,  by  every  commonwealth 
in  the  Union,  of  adjusting  local  administration  to  local 
need.  With  popular  conviction  of  the  fact  of  such  sacri- 
fice is  it  likely  that  the  cities  may  become  more  and  more 
impatient  of  state  control  and  demand  self-government? 
Is  the  conviction,  once  held  by  the  American  people, 
that  the  autonomy  of  local  government  constitutes  the 
basis  of  government  in  America  fading  into  a  tradition,  or 
yielding  to  the  dominance  of  the  idea  of  centralization  ? 

Maryland,  1776,  1851,  1864,  1867;  South  Carolina,  1776,  177S,  1790,  1868, 
1895;  New  Hampshire,  1776,  1784,  1792,  1876;  Virginia,  1776,  1830,  1850, 
1902;  New  York,  1777,  1821,  1846,  1894;  North  Carolina,  1776,  1868, 
1876 ;  Rhode  Island,  charter,  1663,  constitution,  1842  ;  Vermont,  admitted, 
March  4,  1791,  free,  1776,  1786,  1793;  Kentucky,  June  i,  1792,  slave, 
1792,  1799,  1850,  1891  ;  Tennessee,  June  i,  1796,  slave,  1796,  1834,  1865, 
1870;  Ohio,  November  20,  1802,  free,  1802,  1851  ;  Louisiana,  April  30, 
1812,  slave,  1812,  1S45,  1852,  186S,  1879,  1898;  Indiana,  December  11, 
1S16,  free,  1S16,  1851  ;  Mississippi,  December  10,  18(7,  slave,  1817,  1832, 
1868,  1890;  Illinois,  December  3,  1818,  free,  1818,  1848,  1870;  Alabama, 
December  14,  1819,  slave,  1819,  1867,  1875,  '9°'  »  Maine,  March  15,  1820, 
free,  1820;  Missouri,  August  10,  1821,  slave,  1820,  1865,  1875;  Arkansas, 
June  15,  1836,  slave,  1836,  1868,  1874;  Michigan,  January  26,  1837,  free, 
1835,  1850;  Florida,  March  3,  1845,  slave,  1838,  1S65,  1868, 18S6;  Texas, 
December  29,  1845,  slave,  1S45.  1866,  1868,  1876;  Iowa,  December  28, 
1846,  free,  1846,  1857;  Wisconsin,  May  29,  1848,  free,  1848;  California, 
September  9,  1850,  free,  1849.  1879;  Minnesota,  May  u,  1858,  free,  1858; 
Oregon,  February  11,  1859,  free,  1859;  Kansas,  January  29,  1861,  free, 
1859;  West  Virginia,  Ju\\e  19,  1863,  free,  1863,  1872  ;  Nevada,  October  31, 
1864,  free,  1864;  Nebraska,  March  i,  1867,  1875;  Colorado,  August  I, 
1876;  North  Dakota,  November  2,  1889;  South  Dakota,  November  2, 
1S89;  Montana,  November  8,  1889;  Washington,  November  11,  18S9; 
Idaho,  July  3,  1890;  Wyoming,  July  10,  1890;  Utah,  January  4,  1896. 


THE   UNITED    STATES  303 


CHAPTER   XIV 

INTERPRETATION    OF    PRINCIPLES 

Until  the  civil  war  the  g'eneral  government  was  usually 
spoken  of  as  the  Federal  Government,  or  the  Confederacy.^ 
Southern  statesmen  always  used  the  term  "  confederacy," 
and  the  term  was  not  uncommon  with  men  of  every 
party  at  the  North.  Mr.  Lincoln  used  it  in  his  debates 
with  Douglas  in  1858  and  in  a  few  of  his  earlier  state 
papers ;  but  as  soon  as  the  Confederacy  of  the  southern 
states  was  formed,  the  term  came  to  be  applied  exclu- 
sively to  that  organization,  and  was  supplanted  at  the 
North  by  the  word  "  nation."  This  word  as  a  synonym 
for  the  government  of  the  whole  people  is  older  than 
the  Constitution,  but  it  was  used  even  as  late  as  the  out- 
break of  the  war  more  or  less  vaguely  by  speakers  and 
writers.  The  word  "  national  "  was  struck  out  twenty- 
six  times  from  the  first  draft  of  the  Constitution,  and  in 
its  place  the  words  "  government  of  the  United  States  " 
were  inserted.  This  indicates  how  feeble  was  the  national 
idea  in  1787. 

While  it  is  difficult  to  fix  the  exact  time  or  occasion 
when  the  word  "  nation  "  was  first  employed  as  the  syno- 
nym for  the  government  of  the  American  people,  there  is 
reason  to  believe  that  one  of  the  earliest  uses  of  the  word 
in  this  sense  was  made  by  President  Lincoln  in  1863,  in 
his  Gettysburg  address,  in  which  he  spoke  of  the  govern- 
ment of  the  American  people  as  that  of  "  a  new  nation  con- 
ceived in  liberty  and  dedicated  to  the  proposition  that  all 
men  are  created  equal."    Certain  it  is  that  after  the  Getty s- 

^  A  good  example  of  this  occurs  in  "A  Proclamation  by  the  Governor 
of  the  State  of  Missouri,"  respecting  the  Missouri-Iowa  boundary :  "The 
power  of  arrest  ...  by  the  terms  of  admission  of  the  state  of  Missouri 
into  the'  confederacy  of  the  United  States,  etc."  August  23,  1839,  Shain- 
baugh's  "  Jilessages  and  Proclamations  of  the  Governors  of  Iowa," 
vol.  i,  p.  125. 


304     A    CONSTITUTIONAL   HISTORY    OF 

burg  oration  ^  the  word  "  nation  "  was  for  the  first  time 
freely  used  by  the  pubHc,  and  was  appHed  in  the  sense  in 
which  it  is  now  understood.  Congress  in  its  debates,  com- 
mittees in  their  reports,  the  supreme  court  in  its  decisions, 
the  press  in  editorials,  and  the  people  in  their  familiar 
talk,  made  use  of  the  word  in  its  new  sense  soon  after 
the  Gettysburg  speech.  Not  infrequently  both  the  word 
"  nation  "  and  "  national,"  as  applied  to  the  general  gov- 
ernment, were  written  with  a  capital.  During  the  cam- 
paign of  1876  there  arose  a  common  saying,  that  we  had 
become  "  a  Nation  with  a  big  N."  Meanwhile,  the  terms 
"confederacy"  and  "confederation"  dropped  entirely  out 
of  common  speech,  except  when  reference  was  made  to 
the  government  of  the  insurrectionary  states  in  1861,  or  to 
the  League  of  states  of  1781.  Our  political  literature  re- 
sponded to  the  change  in  public  thought,  and  was  enriched 
by  a  work  of  great  influence  in  its  day  which  represented 
the  nation  as  the  foundation  of  civil  order  and  political 
life  in  the  United  States.-  Thus,  the  old  word  with  its 
new  meaning  was  given  the  most  important  place  in  our 
political  vocabulary.  It  signified  that  the  American  people 
understood  the  character,  the  scope,  and  the  functions  of 
their  government  in  a  broader  and  more  philosophical 
sense  than  ever  before.  This  change  was  one  of  the  most 
important  results  of  the  civil  war. 

The  Constitution  was  thenceforth  interpreted  in  con- 
formity to  the  national  character  of  the  government. 
Tested  by  this  character,  the  Confederate  states,  organized 
as  a  southern  Confederacy,  were  an  unlawful  assembly 
without  power  to  take,  to  hold,  or  to  convey  a  valid  title  to 
any  kind  of  property.^  The  courts  which  the  Confederate 
government  organized  were  a  nullity  and  exercised  no 
rightful  jurisdiction  ;  ■*  and  the  debts  or  obligations  which 
it  incurred  are  illegal  and  void.^ 

The  preservation  of  order,  the  maintenance  of  police 
regulations,  the  protection  of  property,  the  enforcement  of 

1  November  ig,  1863. 

2  "The  Nation,"  by  Elisha  Mulford,  LL.D..  1S81. 

3  Sprott  V.  U.  S.,  S  Ct.  CI.  499;  20  Wall.  469. 
*  Hickman  7.'.  Jones.  9  Wall.  197. 

6  Con.stitution,  Article  XIV. 


THE   UNITED    STATES  305 

contracts,  the  celebration  of  marriages,  the  settlement  of 
estates,  the  transfer  and  descent  of  property,  and  similar 
and  kindred  subjects,  were,  during  the  war,  under  the  con- 
trol of  the  local  governments  constituting  the  so-called 
Confederate  states.  That  which  occurred,  or  was  done,  in 
respect  of  such  matters  under  the  authority  of  these  local 
dc  facto  governments  was  not  invalid  merely  because  these 
governments  were  organized  in  hostility  to  the  Union  es- 
tablished by  the  national  Constitution :  because  the  exist- 
ence of  war  between  the  United  States  and  the  Confederate 
states  did  not  relieve  those  who  were  within  the  insur- 
rectionary lines  from  the  necessity  of  civil  obedience,  nor 
did  it  destroy  the  bonds  of  society,  nor  do  away  with 
civil  government  or  the  regular  administration  of  the  laws. 
Transactions  in  the  ordinary  course  of  civil  society,  as 
organized  within  the  enemy's  territory,  although  they  may 
have  remotely  or  indirectly  promoted  the  ends  of  the 
dc  facto,  or  unlawful  government,  organized  to  efifect  a 
dissolution  of  the  Union,  were  without  blame  "  except 
when  proved  to  have  been  entered  into  with  actual  intent 
to  further  invasion  or  insurrection."  In  like  manner,  judi- 
cial and  legislative  acts  in  the  several  Confederate  states 
should  be  respected  by  the  courts,  if  they  were  not  "  hos- 
tile in  their  purpose  or  mode  of  enforcement  to  the  author- 
ity of  the  national  government,  or  did  not  impair  the  rights 
of  citizens  under  the  Constitution."  ^ 

The  war  forever  settled  the  question  of  the  right  of 
secession.  No  more  solemn  proof  of  this  decision  can  be 
found,  unless  it  be  the  unwritten  law  of  the  land,  than 
that  afforded  by  the  Mississippi  constitution  of  1890, 
which  explicitly  denies  the  right  of  secession.  The  war 
demonstrated  the  truth  uttered  by  Chief-Justice  Marshall 
forty  years  before  the  firing  on  Fort  Sumpter,  that  "  the 
United  States  form  a  single  nation."  - 

Soon  after  the  inauguration  of  the  national  govern- 
ment, in  1789,  a  struggle  began,  involving  its  relations  to 
the  states.  All  through  the  years  preceding  the  civil  war 
these  relations  were  the  subject  of  endless  and  acrimonious 
controversy.     State  sovereignty  and  national  sovereignty 

1  Baldy  v.  Hunter,  171  U.  S.  Reports,  388  {1898). 

2  Cohens  v.  Virginia,  6  Wheaton,  264  (1821). 

20 


3o6     A    CONSTITUTIONAL    HISTORY   OF 

seemed  to  be  the  poles  of  our  political  existence.  The 
practical  answer  to  the  questions  involved  was  civil  war, 
which  made  these  relations  clearer  than  ever  before.  The 
people  of  the  United  States,  after  1861,  were  better  able 
to  understand  the  meaning  of  such  terms  as  "  state," 
"commonwealth,"  and  "union."  In  1868  the  term  "state," 
as  it  is  used  in  the  Constitution,  was  authoritatively  de- 
fined as  a  political  community  of  free  persons,  occupying 
a  territory  of  defined  boundaries  and  organized  under  a 
government  sanctioned  and  limited  by  a  written  constitu- 
tion and  established  by  the  consent  of  the  governed.^ 

Until  1865,  the  union  of  the  states  had  been  generally 
considered  as  more  or  less  an  artificial  and  arbitrary  rela- 
tion established  among  them.  This  idea  was  now  aban- 
doned and  the  Union  was  understood  to  mean  an  organic 
relation  growing  out  of  the  common  origin,  the  mutual 
sympathies,  the  kindred  principles,  and  the  similar  inter- 
ests of  the  American  people.  From  the  nature  of  this 
origin,  the  Union  was  now  considered  to  be  indissoluble.^ 
The  preservation  of  the  states  and  the  maintenance  of 
their  governments  were  now  recognized  to  be  as  much 
within  the  design  and  care  of  the  federal  Constitution  as 
is  the  preservation  of  the  Union  and  the  maintenance  of 
the  national  government.  "  The  Constitution  in  all  its 
provisions,"  said  Chief -Justice  Chase  in  1868,  "  looks  to 
an  indestructible  Union  composed  of  indestructible  states." 

The  old  thorn  of  state  sovereignty  was  withdrawn  and 
the  functions  of  the  national  government  and  of  the 
governments  of  the  states  were  more  clearly  perceived. 
The  broad  significance  of  Chief-Justice  Marshall's  opin- 
ion uttered  in  the  early  years  of  our  national  history 
was  gradually  dawning  on  the  mind  of  the  American 
people;  namely,  that  the  national  and  state  governments 
are  each  sovereign  with  respect  to  the  objects  committed 
to  it,  but  that  neither  is  sovereign  with  respect  to  the 
objects  committed  to  the  other.^  The  darkness  which 
had    so   long  enshrouded   the   idea   of   state   sovereignty 

1  Texas  v.  White,  7  Wallace,  700  (1S68). 

2  Id.;   Chancely  v.  Barley,  37  CJeo.  532. 

8  McCullough  V.  Maryland,  4  Wheaton,  316  (1819);  United  States  w 
Cruikshank,  92  United  States,  542. 


THE   UNITED    STATES  307 

vanished,  and  it  was  discovered  that  the  sovereignty  of 
a  state  resides  not  in  the  persons  who  fill  the  different 
departments  of  its  government,  but  in  the  people  from 
whom  the  state  government  emanates,  and  who  may 
change  it  at  their  discretion.  No  lesson  of  the  civil  war 
was  more  valuable  than  its  demonstration  that  sovereignty 
abides  with  the  constituency  and  not  with  the  agent ;  that 
it  exists  in  the  people  of  a  state  and  not  in  a  state  as  a 
political  corporation.^ 

This  organic  and  humane  idea  of  sovereignty  gave  a  new 
meaning  to  the  term  "state."  It  made  clear  that  a  state,  in 
becoming  a  member  of  the  Union,  enters  into  an  indis- 
soluble relation  and  becomes  an  organic  part  of  the  nation. 
Because  of  this  relation,  no  state  can  secede  from  the 
Union, ^  and  ordinances  of  secession  are  absolutely  null.^ 
Because  of  this  relation,  secession  and  rebellion  cannot 
alter  the  constitutional  duties  and  obligations  of  a  state, 
nor  in  any  way  change  the  allegiance  which  its  people 
owe  to  the  national  government;  nor  can  a  state  release 
its  citizens  from  that  allegiance,  "  since  the  state  itself 
is  but  a  fractional  part  of  a  magnificent  whole,  and  in  its 
collective  capacity  is  only  the  aggregation  of  its  individual 
citizens,  all  of  whom  are  alike  incapable  of  effecting  their 
own  release  whether  taken  individually  or  collectively."  * 
Because  of  the  intimate  and  organic  relation  between  the 
national  government  and  the  state  governments,  and  be- 
cause of  the  supremacy  of  the  nation.  Congress  has  plenary 
and  paramount  jurisdiction  over  all  matters  with  which 
it  is  entrusted  by  the  Constitution,  and  in  the  enforcement 
of  its  acts  it  may  utilize  state  laws  and  state  officials.^ 

As  a  general  rule  it  is  expedient  that  the  operations  of 
the  state  and  national  governments  should  as  far  as  prac- 
ticable be  conducted  separately,  in  order  to  avoid  jeal- 
ousies and  conflicts  of  jurisdiction.     The  ruling  principle 

1  Spooner  v.  McConnell,  -?  McLean,  337. 

2  White  V.  Hart,  13  Wallace,  646;  Sequestration  Cases,  30  Texas, 
688 

3  Hawkins  v.  Filkins,  24  Arkansas,  286;  Harlan  v.  State,  41  Missis- 
sippi, 556. 

*  Hood  V.  Maxwell,  i  West  Virginia,  219. 
6  Ex  parte  Siebold,  100  U.  S.  371  (1879). 


3o8     A    CONSTITUTIONAL    HISTORY    OF 

of  the  Constitution  is  that  of  its  paramount  authority  and 
of  the  obedience  of  every  citizen  of  every  state,  whether 
in  his  individual  or  official  capacity.  Of  the  question  of 
power  there  can  be  no  doubt,  but  there  may  be  a  question 
of  expediency,  and  this  must  be  settled  from  time  to  time 
as  Congress  in  its  wisdom  may  determine.  In  other  words, 
the  civil  war  made  clearer  than  before  the  nature  and 
extent  of  the  concurrent  jurisdiction  of  the  two  govern- 
ments. Without  concurrent  sovereignty  "  the  national 
government  would  be  nothing  but  an  advisory  govern- 
ment, and  its  executive  power  absolutely  nullified."  ^ 
Thus  the  true  doctrine  was  worked  out  that  though  the 
states  are  sovereign  as  to  all  matters  which  have  not  been 
granted  to  the  jurisdiction  of  the  nation,  the  constitutions 
and  laws  made  under  and  according  to  the  Constitution 
are  the  supreme  law  of  the  land,  —  a  truth  which,  it  has 
been  well  said,  is  "  the  fundamental  principle  on  which 
the  authority  of  the  Constitution  is  based."  ^ 

The  abolition  of  slavery  and  the  adoption  of  the  thir- 
teenth, fourteenth,  and  fifteenth  amendments  greatly 
changed  the  organization  of  American  government  as 
respecting  the  rights  of  the  people ;  that  is,  the  basis  of 
representation  and  the  exercise  of  the  elective  franchise. 
The  utmost  effect  of  the  thirteenth  amendment  was  to 
declare  the  colored  race  as  free  as  the  white,  but  it  gave 
that  race  nothing  more  than  its  freedom.^  It  forever  de- 
prived the  state  and  the  national  governments  of  the 
power  to  reduce  any  person  to  the  condition  of  slavery 
or  involuntary  servitude,  except  as  a  punishment  for 
crime,*  and  it  made  all  former  slaves  citizens  of  the  United 
States.^  South  Carolina  and  Florida  expressed  the  fear, 
when  they  ratified  this  amendment,  that  Congress  would 
use  its  power  to  enforce  the  article  to  extend  the  elective 
franchise  to  the  negro  and  to  interfere  in  the  police  regu- 
lations of  a  state.  But  the  power  of  enforcing  the  article 
was  not  given,  nor  could  it  be  exercised  for  this  purpose, 

1  Ex  parte  Siebold,  lOO  U.  S.  371  {1879). 

2  Id.;  also  Tarble's  case,  12  Wall.  397  (1871). 
'  Bowlin  V.  Commonwealth,  2  Rush.  5. 

*  People  V.  Washington,  28  California,  658. 
6  U.  S.  V.  Rhodes,  i  Abbot,  U.  S.  28. 


THE    UNITED    STATES  309 

for  it  gave  no  authority  to  Congress  to  usurp  the  authority 
of  the  state  governments.^ 

The  fourteenth  amendment  defined  for  the  first  time 
who  are  citizens  of  the  United  States  and  of  a  state.  But 
persons  may  be  citizens  of  the  one  government  without 
being  citizens  of  the  other.^  The  amendment  did  not 
include  Indians,  but  an  Indian  who  is  taxed  and  has 
severed  his  tribal  relations  is  a  citizen.^  The  main  pur- 
pose of  the  amendment  was  to  establish  the  citizenship  of 
the  negro/  and  to  protect  the  privileges  and  immunities 
of  citizens  of  the  United  States  from  hostile  legislation 
by  the  states,^  therefore  it  is  a  restraint  on  the  states, 
limiting  the  exercise  of  their  powers  which  can  affect  the 
individual  or  his  property.*'  It  did  not  confer  the  right 
of  citizenship  on  Chinamen,  except  such  as  are  born  in 
the  United  States,'^  and  it  has  not  been  decided  that  a 
Chinaman  born  in  America  can  become  a  citizen. 

Though  prohibiting  the  abridgment  of  the  privileges 
of  citizens  of  the  United  States,  it  does  not  forbid  the 
abridgment  of  these  privileges  as  those  of  citizens  of 
states,  for  it  was  not  intended  to  invade  the  right  of  a 
state  to  regulate  the  privileges  and  immunities  of  its  own 
citizens.*  For  this  reason  that  portion  of  the  civil  rights 
law  which  attempted  to  protect  the  privileges  of  citizens 
as  to  equal  accommodations  at  places  of  amusement  at 
inns,  similar  public  places,  and  in  public  conveyances,  was 
unconstitutional  and  not  within  the  powers  of  Congress.^ 
It  is  by  this  amendment  that  the  states  are  prohibited  from 
denying  to  any  person  within  their  jurisdiction  "  the  equal 
protection  of  the  law  " ;  by  which  phrase  is  meant  an 
equal   right  to  resort  to  the  courts   for  the  redress  of 

1  U.  S.  V.  Cruikshank,  92  U.  S.  543  ;  i  Woods,  308;  U.  S.  v.  Harris, 
106  U.  S.  629 ;  State  v.  Rash,  i  Houston,  Delaware  Criminal  Reports,  271. 

2  Slaughter  House  Cases,  16  Wall.  74;  U.  S.  v.  Cruikshank,  92  U.  S. 
543,  I  Woods,  308. 

8  U-  S.  V.  Elm,  23  Int.  Rev.  Rec.  419. 

*  Slaughter  House  Cases,  16  Wall.  36. 
6  U.  S.  V.  Harris,  106  U.  S.  629. 

s  San  Mateo  Co.  v.  Southern  Pacific  R.  R.  Co.,  8  Sawyer,  238. 

^  State  V.  Ah  Chew,  16  Nevada,  51. 

*  Ex  parte  Kinney,  3  Hughes,  i  ;  Green  v.  The  State,  58  Arkansas,  190. 
^  Civil  Rights  Cases,  3  Supreme  Court  Report,  18,  33;  per  contra, 

U.  S.  V.  Newcomer,  11  Philadelphia,  519. 


310     A    CONSTITUTIONAL    HISTORY    OF 

wrongs,  the  enforcement  of  rights,  and  the  exemption  from 
unequal  burdens  or  exactions  of  any  kind.  This  equal 
protection  is  denied  when  taxation  is  not  uniform  and 
equal  and  when  the  law  does  not  require  both  uniformity 
in  the  rate  and  in  the  mode  of  assessment.^ 

The  fourteenth  amendment  in  securing  citizenship  for 
the  colored  race  did  not  confer  on  that  race  privileges  or 
immunities  not  enjoyed  by  the  white  race.  It  gave  the 
negro  citizenship,  but  citizenship  does  not  imply  the  pos- 
session of  all  political  rights,^  for  the  elective  franchise  is 
not  a  natural  right  or  an  immunity.^  It  declared  that 
all  persons  born  in  the  United  States  are  citizens ;  but  the 
amendment  was  not  self-executing,  and  did  not  make  the 
persons  for  whom  it  was  primarily  designed,  voters.*  It 
made  clear  that  Congress  can  legislate  in  protection  of  the 
rights  only  of  citizens  of  the  United  States  as  such  citizens 
and  not  as  citizens  of  a  state.^ 

The  amendment  was  not  intended  to  transfer  the  pro- 
tection of  all  civil  rights  to  the  national  government  nor 
to  bring  within  the  jurisdiction  of  Congress  the  entire 
domain  of  civil  rights  which  had  before  belonged  exclu- 
sively to  the  states. **  The  protection  of  life  and  personal 
liberty  in  America  rests  in  the  states  alone, ^  but  the  provi- 
sion in  the  fourteenth  amendment,  which  empowers 
Congress  to  enforce  it,  brings  within  the  jurisdiction  of 
the  national  government  atrocity,  private  outrage,  or 
intimidation  in  any  form  growing  out  of  the  relation 
between  the  black  and  white  races. ^  And  in  case  a  state 
does  not  conform  in  its  laws  to  the  requirements  of  the 
amendment.  Congress  may  authorize  its  enforcement  by 
suitable   legislation."      The   legislation    authorized,    how- 

1  Railroad  Tax  Cases,  13  Federal  Reporter,  722;  18  Federal  Reporter, 

385- 

2  People  V.  De  La  Guerra,  40  Cal.  311. 

8  Minor  v.  Happersett,  21  Wall.  162;  U.  S.  v.  Cruikshank,  92  U.  S. 
542  ;  Van  Valkenburg  v.  Hrown,  43  Cal.  43. 

*  Spencer  u.  Board,  i  McArthur,  169. 

6  U.  S.  V.  Cruikshank,  92  U.  S.  560;  Culley  v.  Baltimore  and  Ohio 
Railroad,  t  Hughes,  536. 

^  Slaughter  House  Cases,  16  Wall.  36. 

■^  U.  S.  V.  Cruikshank,  92  U.  S.  54*2  ;  i  Woods,  308. 

8  Id. 

»  U.  S.  V.  Harris,  106  U.  S.  629. 


THE   UNITED    STATES  311 

ever,  is  corrective  in  character,  and  must  be  such  as  may 
be  necessary  for  restraining  or  correcting  the  effects  of 
state  laws  in  conflict  with  the  amendment.^  Thus  the 
large  meaning  of  the  amendment,  in  so  far  as  affecting 
United  States  citizenship,  consisted  in  placing  that  citizen- 
ship under  the  protection  of  the  national  government. 

The  fifteenth  amendment  did  not  confer  the  right  of 
suffrage  on  any  person,^  but  invested  every  citizen  of  the 
United  States  with  a  new  right,  which  it  is  within  the 
power  of  Congress  to  protect.^  The  amendment  is  in 
some  respects  peculiar  in  that  it  is  expressed  in  the  neg- 
ative form.  It  took  away  from  the  states  the  authority 
to  discriminate  against  citizens  of  the  United  States  on 
account  of  either  race,  color,  or  previous  condition  of 
servitude,  and  as  by  the  fourteenth  amendment  colored 
persons  are  citizens  of  the  United  States  equally  with 
whites,  so  by  the  fifteenth  discrimination  against  them 
was  equally  forbidden.  But  with  the  exception  of  dis- 
crimination on  account  of  race,  color,  or  previous  con- 
dition of  servitude,  a  state  may  prescribe  such  restrictions 
or  qualifications  for  the  exercise  of  the  suffrage  as  it  may 
think  best.* 

In  nearly  every  state  constitution  in  force  at  the  time 
of  the  adoption  of  the  fifteenth  amendment,  the  words 
"  white  male "  were  a  legal  description  of  the  elector. 
The  amendment  annulled  the  discriminating  word 
"  white  "  and  thus  affected  the  constitutions  of  northern 
as  well  as  of  southern  states.  By  the  obliteration  of  this 
discriminating  word,  the  negro  was  left  to  enjoy  the  same 
rights  as  white  persons.  If  a  state  should  adopt  a  consti- 
tutional provision,  giving  the  right  to  vote  exclusively  to 
white  persons,  the  fifteenth  amendment  would  operate 
practically  to  confer  the  right  to  vote  on  the  negro,  and 
Congress  has  power  to  protect  and  enforce  this  right. ^ 
It  is  a  somewhat  curious   fact  that  the  discriminating 

1  Civil  Rights  Cases,  3  Supreme  Court  Reporter,  18. 

2  Minor  v.  Happersett,  21  Wall.  178  (1874)  ;  U.  S.  v.  Cruikshank,  92 
U.  S.  555;  I  Woods,  308;  U.  S.  V.  Reese,  92  U.  S.  214;  Anthony  v. 
Haldeman,  7  Kansas,  50 ;  Hedgman  v.  State,  26  Michigan,  51. 

^  In  re  Reese  and  Cruikshank,  as  above. 
*  Van  Valkenburg  v.  Brown,  43  Cal.  43. 
fi  U.  S.  V.  Reese,  92  U.  S.  214. 


312     A    CONSTITUTIONAL    HISTORY    OF 

word  "  white  "  was  still  found  in  the  constitutions  of  eight 
northern  and  of  two  border  states  ^  at  the  close  of  the 
nineteenth  century,  but  it  was  meaningless  as  a  discrim- 
inating word,  and  should  these  states  adopt  new  consti- 
tutions it  would  be  omitted.  Another  change  of  no  small 
importance  was  effected  by  the  fifteenth  amendment  in 
American  government,  —  that  Congress  has  power  to 
protect  citizens  in  those  rights  which  are  created  by  it 
or  which  are  dependent  upon  it.^ 

But  a  corporation  is  not  a  citizen  within  the  meaning 
of  the  fourteenth  amendment,  and  does  not  possess  the 
privileges  and  immunities  secured  to  citizens  against 
state  legislation.^  The  privileges  and  immunities  of  citi- 
zens of  the  United  States  do  not  necessarily  include  all 
the  rights  protected  by  the  first  eight  amendments  to  the 
Constitution  against  the  power  of  the  federal  government.* 
The  right  to  vote  for  members  of  Congress  is  not  derived 
merely  from  the  constitutions  and  laws  of  the  state  in 
which  they  are  chosen,  but  has  its  foundations  in  the  Con- 
stitution and  laws  of  the  United  States.^ 

The  character  of  later  constitutional  interpretation  has 
been  well  exemplified  by  the  platforms  of  political  parties. 
In  1868  the  democratic  party  pronounced  all  the  recon- 
struction acts  of  Congress  "  unconstitutional,  revolution- 
ary and  void,"  and  at  the  same  time  the  Republicans 
congratulated  the  country  on  the  assured  success  of  this 
reconstruction  policy  as  shown  by  the  adoption  of  consti- 
tutions in  most  of  the  late  insurrectionary  states,  "  secur- 
ing equal  civil  and  political  rights  to  all."  It  was  in 
this  platform  of  1868,  on  which  Grant  and  Colfax  were 
nominated,  that  the  words  "  nation  "  and  "  national  " 
were  for  the  first  time  spelled  with  a  capital  letter.  The 
republican  platform  of  1872,  on  which  Grant  was  renom- 
inated, repeated  this  use  of  the  word  "  nation,"  but  the 
democratic  platform  of  the  same  year,  adopted  at  Louis- 

^  Ohio,  1851;  Indiana,  1851  ;  Michigan,  1850;  Iowa,  1857;  Wiscon- 
sin, 184S;  Minnesota,  1858  ;"Oregon,  1859;  Nevada,  1864;  Maryland, 
1867;   Kentucky,  1850-1890. 

2  U.  S.  V.  Reese,  92  U.  S.  214. 

8  Orient  Insurance  Co.  v.  Daggo,  172  U.  S.  Reports,  537  (1898). 

*  Maxwell  v.  Dow,  176  U.  S.  Reports,  595  (1899). 

6  Wiley  V.  Sinkler,  179  U.  S.  Reports,  62  (1900). 


THE   UNITED    STATES  313 

ville,  Kentucky,  used  the  old  term,  "Federal  Union."  The 
democratic  and  republican  platforms  of  1876  again  pre- 
sented the  same  contrast.  In  1872  the  Republicans  pro- 
nounced strongly  for  the  enforcement  of  the  thirteenth, 
fourteenth,  and  fifteenth  amendments,  but  no  reference 
was  made  to  these  amendments  in  the  platform  of  their 
opponents.  But  in  1876  the  platform  on  which  Tilden 
and  Hendricks  were  nominated  affirmed  the  devotion  of 
the  democratic  party  to  the  Constitution,  "  with  its  amend- 
ments universally  accepted  as  a  final  settlement  of  the 
controversies  that  engendered  civil  war." 

It  was  in  1876,  the  centennial  of  American  independence, 
that  a  political  party  for  the  first  time  proclaimed  that 
"  the  United  States  is  a  nation,  not  a  league  "  ;  and  in  the 
same  clause  the  Republicans  referred  to  our  dual  civil  sys- 
tem as  "the  combined  workings  of  national  and  state  gov- 
ernments." This  was  a  new  idea,  though  now  clear  enough 
to  us,  in  the  evolution  of  the  government  from  the  begin- 
ning, but  not  realized  until  after  the  civil  war.  The 
changes  through  which  the  country  has  passed  are  no- 
where more  expressively  indicated  than  in  the  saying  that 
the  United  States  of  America  is  a  nation,  not  a  league. 
It  may  be  contrasted  to  the  declaration  of  the  platform 
on  which  Buchanan  and  Breckenridge  were  elected  in 
1856,  that  the  democratic  party  would  abide  by  the 
principle  laid  down  in  the  Kentucky  and  Virginia  resolu- 
tions of  1798,  and  that  it  adopted  them  as  the  main 
foundations  of  its  political  creed.  Throughout  the  evo- 
lution of  American  government  the  two  ideas  which  stand 
in  sharpest  contrast,  and  between  which  there  is  a  bridge- 
less  gulf,  are  the  doctrines  of  1798  and  the  principles  of 
national  sovereignty. 

It  may  be  said  that  the  later  interpretation  of  the  Con- 
stitution has  tended  to  enlarge  the  jurisdiction  of  the 
United  States  far  beyond  the  limits  assigned  it  by  our 
earlier  statesmen.  Many  decisions  might  be  cited  in 
proof  of  this  ;  a  few  will  suffice.  The  extraordinary  stim- 
ulus which  the  war  gave  to  every  kind  of  industry  easily 
accustomed  the  American  people  to  look  with  tolerance 
upon  this  extended  jurisdiction.  An  illustration  of  this  is 
aflforded  by  the  legal-tender  cases. 


314     A    CONSTITUTIONAL    HISTORY    OF 

In  February,  1862,  and  by  subsequents  acts,  Congress 
empowered  the  Secretary  of  the  Treasury  to  issue  United 
States  notes,  making  them  a  legal  tender.  They  fluctu- 
ated greatly  in  value,  but  circulated  among  the  people  as 
money.  By  many  they  were  classed,  though  erroneously, 
with  gold  and  silver  coin.  The  court  of  appeals  of  the 
city  of  New  York  decided  that  they  were  money,  and 
taxable  as  cash,  but  in  the  December  term,  1868,  this 
decision  was  reversed  by  the  supreme  court  of  the  United 
States,^  which  held  that  the  notes,  or,  as  they  were  com- 
monly called,  "  greenbacks,"  were  securities,  but  not 
money.  Meanwhile  another  case  involving  the  legal- 
tender  quality  of  the  notes  reached  the  supreme  court 
from  Kentucky.  The  opinion  was  delivered  by  Chief- 
Justice  Chase  in  1869.- 

The  court  consisted  of  eight  members,  five  of  whom 
held  that  in  as  much  as  the  act  of  1862,  by  construction, 
declared  these  notes  to  be  legal  tender  in  payment  of  pre- 
existing debts,  the  act  was  inconsistent  with  the  principles 
of  the  Constitution,  and  was  not  a  law  necessary  and 
proper  for  carr^dng  into  execution  the  powers  vested  in 
the  national  government.  The  chief-justice  had  been 
Secretary  of  the  Treasury  at  the  time  of  the  passage  of 
the  law,  and  was,  indeed,  its  author.  His  judicial  opinion 
was  considered  a  reversal  of  his  opinion  as  secretary  in 
1862.  He  now  held  that  the  four  hundred  million  dollars 
in  paper,  which  had  been  issued  under  the  various  acts, 
were  not  made  a  legal  tender,  and  that  the  cause  of  their 
free  circulation  among  the  people  was  their  quality  of 
receivability  for  public  dues  and  not  their  quality  as  legal- 
tender  notes ;  therefore,  the  acts  creating  them  were 
unconstitutional.  From  this  opinion  of  the  chief-justice 
and  four  of  his  associates,  Mr.  Justice  Miller  and  two  of 
his  colleagues  dissented,  holding  that  the  acts  were  neces- 
sary and  proper  to  execute  the  powers  vested  by  the  Con- 
stitution in  the  national  government,  and  that  Congress 
had  the  choice  of  means,  and  was  empowered  to  use  any 
which  in  its  judgment  might  bring  about  the  end  desired. 

In  April,  1869,  the  court  was  enlarged  so  as  to  consist 

^  Bank  v.  Supervisor,  7  Wall.  26. 
*  Hepburn  v.  Griswold,  8  Wall.  603. 


THE   UNITED    STATES 


0^0 


of  a  chief- justice  and  eight  associate  judges.  Mr.  Justice 
Grier  resigned,  and  President  Grant  filled  the  two  vacan- 
cies in  the  court  by  the  appointment  of  Mr.  William 
Strong,  of  Pennsylvania,  and  Mr.  Joseph  P.  Bradley,  of 
New  Jersey.  In  the  December  term,  1870,  another  case 
involving  the  legal-tender  quality  of  the  notes  reached  the 
court,  and  was  decided  on  the  ist  of  May,  following.^ 
The  decision  rendered  the  year  before  was  now  reversed, 
and  the  legal-tender  acts  were  held  to  be  constitutional, 
both  as  affecting  contracts  made  before  their  enactment 
and  those  made  afterward.  The  opinion  of  the  minority 
in  the  former  decision  was  now  elaborated  by  Mr.  Justice 
Strong  as  the  opinion  of  the  court.  He  enlarged  the 
scope  of  the  inquiry,  and  declared  that  the  fundamental 
question  was  whether  Congress  could  give  the  quality  of 
money  to  United  States  notes.  In  answer,  the  court  now 
asserted  that  Congress  has  power  to  enact,  —  that  the 
promise  of  the  government  to  pay  money  should  be  for 
the  time  being  equivalent  in  value  to  gold  and  silver  coin, 
and  that  a  contract  calling  for  dollars  could  be  legally  ful- 
filled by  a  tender  of  the  promise  of  the  government  to  pay 
dollars.  From  this  opinion  the  chief-justice  and  Justices 
Nelson,  Field,  and  Clifford  dissented,  holding  that  the 
decision  would  sustain  an  emission  of  paper  currency; 
that  the  Constitution  forbids  any  state  to  make  anything 
but  gold  and  silver  a  legal  tender;  and  that  the  national 
government  can  constitutionally  do  no  more  than  coin 
gold  and  silver,  and  regulate  its  value  and  that  of  foreign 
coin.  The  government  could  emit  treasury  notes  as  a 
means  of  borrowing  money,  but  it  could  not  make  them 
either  money  or  legal  tender  for  money. 

Twelve  years  later  a  third  case  reached  the  court,  and 
the  inquiry  into  the  principle  involved  was  carried  further 
than  before.'  In  the  earlier  decision  ^  the  legal-tender 
acts  had  been  supported  on  the  ground  that  they  came 
under  the  power  of  Congress  to  declare  war;  it  was  the 
war-power  which  imparted  a  legal-tender  quality  to 
United   States  notes ;    but  in  the  third  case  before  the 

1  The  Legal-Tender  Cases,  12  Wall.  457  (1871). 

2  Juilliard  v.  Greenman,  no  U.  S.  421  (1883). 
'  Hepburn  v.  Griswold,  8  Wall.  603. 


3i6     A    CONSTITUTIONAL    HISTORY    OF 

court,  the  court  considered  whether  such  notes,  issued  in 
time  of  war  under  acts  of  Congress  declaring  them  to 
be  a  legal  tender  in  payment  of  private  debts,  and  after- 
ward, in  time  of  peace,  redeemed  and  paid  in  gold  coin, 
at  the  treasury,  and  then  reissued  under  the  act  of  1878,^ 
could,  under  the  Constitution  of  the  United  States,  be  a 
legal  tender  in  payment  of  such  debts. 

In  answering  this  inquiry,  the  court  followed  the  rea- 
soning of  Chief-Justice  Marshall  as  to  the  scope  and 
extent  of  the  implied  powers  of  Congress."  The  people 
of  the  United  States,  by  the  Constitution,  had  established 
a  national  government  with  sovereign  powers,  —  legis- 
lative, executive,  and  judicial,  —  and  Marshall's  definition 
was  now  applied  to  its  full  extent.  The  great  chief-justice 
had  delivered  a  judgment,  adverse  to  the  powers  of  the 
states  to  issue  legal-tender  notes.  He  had  sustained  the 
power  of  Congress  to  charter  a  bank,  whose  issue  circu- 
lated as  money.  The  application  of  the  principle  which 
he  had  elucidated,  as  recorded  in  the  practice  of  the  gov- 
ernment, now  satisfied  the  court  that  the  constitutional 
authority  of  Congress  to  provide  a  currency  for  the  whole 
country  was  now  firmly  established.^  This  being  granted, 
it  followed  that  Congress  might  constitutionally  secure 
the  benefit  of  such  a  currency  to  the  people  by  proper 
legislation.  The  prohibition  in  the  Constitution  of  the 
emission  of  bills  of  credit  by  the  states,  and  of  making 
anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts,  did  not  prove  that  a  like  limitation  of  Congress  was 
to  be  inferred. 

Indeed,  the  very  limitation  of  state  emissions  was  evi- 
dence that  no  like  limitation  was  intended  to  restrain  Con- 
gress. The  logical  and  necessary  consequence  then  was 
that  Congress  "  has  power  to  issue  the  obligations  of  the 
United  States  in  such  form  and  to  impress  upon  them 
such  qualities  as  currency  for  the  purchase  of  merchan- 
dise and  the  payment  of  debts,  as  accord  with  the  usage 
of  sovereign  governments."  Under  the  power  to  borrow 
money  on  the  credit  of  the  United  States,  Congress  has 

1  Act  of  May  31,  1S78. 

2  McCulloucjh  V.  Maryland,  4  Wheaton,  316  {1819). 
8  Veazie  Bank  v.  Fenno,  8  Wall.  533. 


THE    UNITED    STATES  37 

as  broad  an  authority  as  it  has  over  a  metallic  currency 
under  tlie  power  to  coin  money.  Congress,  under  the  two 
powers  of  coining  and  borrowing  money,  was  authorized 
to  estabHsh  a  national  currency  either  in  coin  or  paper, 
and  to  make  cither  of  them  lawful  money  for  all  purposes. 
And  this  power  of  Congress  to  issue  legal-tender  notes  is 
not  a  power  to  be  exercised  only  in  time  of  war,  but  is 
equally  within  the  discretion  of  Congress  in  time  of  peace. 
The  wisdom  of  Congress  will  determine  when  the  exi- 
gency has  arisen.  This  is  a  political  not  a  judicial 
question.  For  these  reasons  the  court  sustained  the 
constitutionality  of  the  act  of  1878,  and  held  that  treasury 
notes  are  a  legal  tender  in  payment  of  private  debts,  and 
can  be  reissued  and  kept  in  circulation.^ 

From  this  opinion  Mr.  Justice  Field  dissented.  He 
reviewed  the  history  of  bills  of  credit  in  the  country,  and 
of  the  clause  relating  to  the  subject  in  the  Constitution, 
and  particularly  the  history  of  the  legal-tender  acts  and 
of  the  act  of  1878.  "  Why,"  inquired  he,  "  should  there 
be  any  restraint  upon  unlimited  appropriations  by  the 
government  for  all  imaginary  schemes,  if  the  printing 
press  can  furnish  the  money  that  is  needed  for  them?" 
U  Congress  has  the  power  to  make  treasury  notes  a  legal 
tender,  and  pass  as  money  or  its  equivalent,  why  should 
it  not  issue  a  sufficient  amount  to  pay  the  debt  of  the 
United  States?  His  reasoning  led  him  to  the  conclusion 
that  the  decision  of  the  court  was  inconsistent  with  the 
letter  and  spirit  of  the  Constitution.- 

The  decision  of  the  court  on  the  legal-tender  question 
was  soon  utilized  in  the  platform  of  the  national  green- 
back party,  which,  in  1884,  declared  that  the  court  fully 
vindicated  the  theory  of  the  party  on  the  right  and  author- 
ity of  Congress  to  issue  legal-tender  notes,  and  demanded 

1  Ttiilliard  v.  Greenman,  no  U.  S.  421  (October,  1883). 

"  The  act  of  1878  which  the  court  pronounced  constitutional  expressly 
forbade  the  retirement  of  the  treasury  notes  ;  thev  must  be  "reissued 
and  paid  out  again  and  kept  in  circulation."  Nearly  twenty  years  later 
President  Cleveland  characterized  this  act  as  one  which  put  the  govern- 
ment in  the  anomalous  situation  of  being  "forced  to  redeem  without 
redemption  and  to  pay  without  acquittance."  (Message,  December  2, 
1895,  Richardson,  vol.  i.x,  p.  642.)  This  act  was  the  "  endless  chain  " 
which  ran  legal- tender  notes  into  the  Treasury  and  gold  out  of  it. 


3i8     A    CONSTITUTIONAL    HISTORY    OF 

the  issue  of  such  money  in  sufhcient  quantities  to  supply 
the  actual  need  of  trade  and  commerce,  and  also  de- 
manded that  treasury  notes  should  be  substituted  for 
national  bank  notes,  and  that  the  public  debt  be  promptly 
paid  with  them. 

A  great  governmental  power  was  examined  by  the 
supreme  court  in  its  decision  on  the  constitutionality  of 
a  portion  of  the  act  of  Congress  of  1894,  providing  for 
internal  revenue,  known  as  the  income  tax.^  The  cases 
involving  the  law  were  twice  argued ;  first,  when  one 
justice  was  absent;  secondly,  before  a  full  bench.  After 
the  first  hearing,  the  court  decided  that  a  tax  on  the  rents 
or  income  of  real  estate  is  a  direct  tax  within  the  meaning 
of  that  term  as  used  in  the  Constitution,  and  that  a  tax 
derived  from  the  interest  of  bonds  issued  by  a  municipal 
corporation  is  a  tax  upon  the  power  of  the  state,  and  its 
instrumentalities  to  borrow  money,  and  therefore  is  repug- 
nant to  the  Constitution.  Whether  the  act  was  unconsti- 
tutional in  so  far  as  it  levied  an  income  tax  on  personal 
property  -  and  thus  made  a  direct  tax,  was  not  decided, 
the  justices  being  equally  divided.  This  was  the  un- 
certain situation  in  April,  1895.  ^^  May  the  cases  were 
re-argued,  and  the  decision  of  the  court  on  the  last 
point  was  rendered,  the  opinion  of  the  court  being  given 
by  Chief-Justice  Fuller.^  A  direct  tax,  in  order  to  be 
constitutional,  must  be  apportioned  according  to  repre- 
sentation. The  court  held  that  the  tax  on  personal 
property,  or  on  the  income  of  personal  property,  was  a 
direct  tax,  and  that  the  tax  imposed  by  the  act  of  1894 
was  such  a  tax.  As  it  was  not  apportioned  to  represen- 
tation, it  was  unconstitutional  and  void.'*  The  decision, 
in  so  far  as  it  interpreted  the  Constitution,  sustained  the 
earlier  decisions,  Chief-Justice  Fuller  citing  several  of 
Marshall's  as  the  ground  of  exposition.^     Citing  also  the 

1  Sections  27-30,  act  of  August  27,  1894.  Statutes  at  Large,  vol.  xviii, 
p.  553  ;  r57  U.  S.  429;  158  U.  S.  601.  The  cases  were  heard  in  April,  189s ; 
re-argued,  May,  1895. 

2  Two  per  cent  on  yearly  gains  above  $4000. 

8  Mellville  W.  Fuller,  appointed  Chief-Justice,  1SS8. 
*  From  this  decision  four  of  the  nine  justices  dissented. 
^  McCullough  V.  Maryland,  4  Wheaton,  316,  407  ;  Gibbons  v.  Ogden, 
9  Wheaton,  i,  188;  Hylton  v.  U.  S.,  3  Dallas,  171. 


THE   UNITED    STATES  319 

opinions  of  Hamilton  and  Madison,  in  "  The  Federalist,"  ^ 
he  declared  that  their  construction  of  the  Constitution 
"  should  not  and  cannot  be  disregarded."  The  unconsti- 
tutionality of  the  income  tax  clauses  of  the  act  of  1894 
consisted  in  the  method  of  imposing  the  tax.  A  direct 
tax  must  be  apportioned  according  to  representation. 

In  the  presidential  campaign  of  1896,  the  democratic 
and  the  people's  parties  made  an  issue  of  the  decision, 
each  calling  for  the  imposition,  by  Congress,  of  a  gradu- 
ated income  tax,  on  the  ground  that  by  the  existing  sys- 
tem the  burden  of  the  support  of  the  government  fell  on 
land,  —  the  farming  class  and  small  land  owners ;  cor- 
porations and  the  owners  of  capital  invested  in  franchises 
escaping  their  share. 

The  Republicans,  in  their  platform,  made  no  allusion  to 
the  decision.  The  issue  was,  however,  not  a  new  one, 
having  been  raised  by  several  parties,  —  the  first  time 
in  1880.- 

An  illustration  of  the  trend  of  political  thought  was 
afiforded  in  1889,  in  the  decision  in  the  greatest  of  all  the 
Utah  cases,  that  affecting  the  Mormon  church.^  Accord- 
ing to  this  decision,  the  power  of  Congress  over  the  ter- 
ritories of  the  United  States  is  general  and  plenary.  It 
arises  from  the  right  to  acquire  the  territory,  and  the 
power  to  make  all  needful  rules  and  regulations  respect- 
ing the  territory  or  other  property  belonging  to  the  United 
States.  What  Chief-Justice  Marshall  had  long  before 
decided  ■*  the  court  now  reaffirmed,  —  that  the  power  of 
the  United  States  to  acquire  territory  is  derived  from  the 
treaty-making  power  and  the  power  to  declare  and  carry 
on  war.  This  power  to  acquire  territory  is  an  incident  of 
national  sovereignty.  Having  obtained  such  territory, 
the  United  States  can  impose  law^s  upon  it.  Congress 
may  legislate  directly  for  its  local  government,  and  has 
full  and   complete  legislative   authority  over  its   people. 

1  "  The  Federalist,"  Nos.  XXX-XXXVI. 

'■^  Greenback  party,  platform,  Chicago,  June  9-1 1.  1880;  United  Labor, 
Cincinnati.  Mav  16,  1888;  Democratic,  Chicago,  June  21,  1892;  National 
People's,  Omaha,  July  2,  1S92  ;  Democratic,  Chicago,  July  8,  1S96; 
People's,  St.  I.ouis,  July  24,  1S96. 

»  Mormon  Church  z\  U.  S.,  136  U.  S.  i,  42,  44. 

*  American  Insurance  Co.  v.  Canter,  i  Peters,  511  (1828). 


320     A    CONSTITUTIONAL   HISTORY    OF 

By  virtue  of  this  sovereign  authority,  Congress  annulled 
the  charter  of  the  Morman  church,  confiscated  its  prop- 
erty, and  devoted  it  to  public  uses.  The  regulation  of  a 
territory  by  Congress  depends,  therefore,  solely  on  its 
discretion. 

In  another  Utah  case  the  court  examined  still  more  in 
detail  the  power  of  Congress  to  regulate  the  domestic 
affairs  of  a  territory.  **  The  people  of  the  United  States 
are  sovereign  owners  of  the  national  territories,"  said  Mr. 
Justice  Matthews,  "  and  have  supreme  power  over  them 
and  their  inhabitants.^  In  the  exercise  of  this  sovereign 
dominion  they  are  represented  by  the  government  of  the 
United  States,  to  whom  all  the  powers  of  government 
over  that  subject  have  been  delegated,  subject  only  to  such 
restrictions  as  are  expressed  in  the  Constitution,  or  are 
necessarily  implied  in  its  terms  or  in  the  purposes  and 
object  of  the  power  itself;  for  it  may  well  be  admitted 
in  respect  to  this  as  in  every  power  of  society  over  its 
members  that  it  is  not  absolute  and  unlimited.  But  in 
ordaining  government  for  the  territories  and  the  people 
inhabiting  them,  all  the  discretion  which  belongs  to  the 
legislative  power  is  vested  in  Congress,  and  that  extends 
beyond  all  controversy,  to  determine  by  law,  from  time 
to  time,  the  form  of  local  government  in  a  particular  ter- 
ritory, and  the  qualification  of  those  who  shall  admin- 
ister it.  It  rests  with  Congress  to  say  whether  in  a  given 
case  any  of  the  people  resident  in  the  territory  shall  par- 
ticipate in  the  election  of  its  officers,  or  the  making  of  its 
laws ;  and  it  may,  therefore,  take  from  them  any  right  of 
suffrage  it  may  previously  have  conferred,  or  at  any  time 
modify  or  abridge  it  as  it  may  deem  expedient.  The  right 
of  local  self-government,  as  known  to  our  system  as  a 
constitutional  franchise,  belongs,  under  the  Constitution, 
to  the  states  and  to  the  people  thereof  by  whom  that  Con- 
stitution was  ordained,  and  to  whom,  by  its  terms,  all 
power  not  conferred  by  it  upon  the  government  of  the 
United  States  was  expressly  reserved.  The  personal 
and  civil  rights  of  the  inhabitants  of  the  territories  are 
secured  to  them,  as  to  other  citizens,  by  the  principle  of 

1  In  Murphy  ?'.  Ramsey,  114  U.  S.  44. 


THE   UNITED    STATES  321 

constitutional  liberty,  which  restrains  the  agencies  of 
government,  state  and  national.  Their  political  rights 
are  franchises  which  they  hold  as  privileges  under  the 
legislative  discretion  of  the  Congress  of  the  United 
States." 

This  decision  became  of  extraordinary  interest  in  con- 
nection with  the  extension  of  the  jurisdiction  of  the 
United  States  over  Porto  Rico,  Hawaii,  and  the  Philip- 
pines, in  1898.  If  the  construction  of  the  Constitution 
which  this  decision  made  is  to  regulate  the  government 
of  these  new  acquisitions,  then  the  American  people,  act- 
ing through  Congress,  can  forbid  the  people  of  any  of 
these  new  acquisitions  to  assemble  for  the  purpose  of 
political  discussion  to  petition  our  government  for  re- 
dress of  grievances,  and  to  bear  arms.  Congress  can 
provide  for  searches  and  seizures  of  the  persons  dwelling 
in  these  acquisitions,  —  their  houses,  papers,  and  effects, 
—  in  modes  that  are  recognized  as  illegal  when  employed 
in  any  American  commonwealth.^ 

The  acquisition  of  the  Philippine  Islands  raised  new 
constitutional  questions.  Are  the  provisions  of  the  four- 
teenth and  fifteenth  amendments  to  be  extended  to  their 
inhabitants?  Are  the  people  of  these  islands  citizens  of 
the  United  States,  and  therefore  entitled  to  all  the  im- 
munities and  privileges  of  such  persons?  Is  manhood 
suffrage  to  be  exercised  by  them  ?  Does  the  Constitution 
permit  the  organization  of  a  state  in  the  sense  in  which 
the  word  is  used  in  America,  out  of  islands  remote  from 
the  United  States  and  having  no  ties  or  connection  with 
this  country? 

Can  Congress  organize  a  territorial,  or  colonial,  gov- 
ernment of  a  military  type  for  these  possessions,  and  can 
it  govern  them  in  a  way  altogether  different  from  that 
which  has  at  any  time  prevailed  in  any  other  territory 
of  the  United  States? 

In  brief,  under  the  Constitution  and  laws  of  the  United 
States  can  any  place  be  found  for  a  colonial  system, 
analogous,  say,  to  that  of  the  British  empire?  Has  the 
acquisition   of   the   outlying  possessions   of   the   United 

1  "The  People  of  the  United  States,"  by  Simeon  E.  Baldwin,  LL.D. 
Yale  Law  Journal,  January,  1899. 


322     A    CONSTITUTIONAL    HISTORY    OF 

States — Porto  Rico,  Hawaii,  and  the  Philippines — made 
it  necessary  for  the  American  people  to  depart  from  the 
policy  hitherto  established  in  the  organization  or  terri- 
torial governments  and  inaugurate  a  civil  system  for 
dependencies  ? 

These  questions,  and  many  others  akin  to  them,  are  not 
yet  answered.  The  acquisition  of  Porto  Rico,  Hawaii, 
and  the  Philippines  marks  the  close  of  an  era  in  American 
history.  Americans  recognize  this  fact ;  European  critics 
of  America  make  it  the  theme  of  new  prophecies  and  new 
deductions  concerning  the  world-politics  of  the  future. 
A  French  economist  has  recently  said :  "  Az'cc  I'annee 
i8p8  commence  en  rcalitc  iinc  pcriode  nouvclle ;  les  vic- 
tories sur  I'Espagne,  le  triomphe  de  la  politique  d'expan- 
sion,  le  triomphe  de  la  monnaie  d'or  temoignent  du  ce 
changement."  ^ 

The  government  of  the  United  States  is  slowly  feeling 
its  way  toward  a  fixed  policy  of  government  for  our  out- 
lying possessions.  This  is  perhaps  as  much  as  can  be  said 
with  safety  at  the  present  time.  This  policy,  it  must  be 
understood,  is  a  matter  of  administration ;  that  is,  of 
practical  application  of  the  principles  on  which  the 
American  government  is  founded.  There  can  be  no 
change  in  these  principles ;  there  may  be  a  change  in  the 
application  of  the  principles.  For  the  interpretation  of 
these  principles  we  look  to  the  supreme  court  of  the 
United  States,  which,  as  cases  involving  these  principles 
have  come  before  it,  has  defined  them.  Cases  growing 
out  of  the  tariff  laws  of  the  United  States  and  in  the 
decision  of  which  the  powers  of  Congress  over  the  Philip- 
pines and  Porto  Rico  were  set  forth,  reached  the  court 
in  1901. 

1  Professor  Hauser,  of  the  University  of  Dijon,  in  Bulletin  de  la 
Societe  des  Amis  de  I'Universite  de  Dijon,  tome  6,  No.  V,  Fev.  1902. 
See  also  Constitutional  Questions  Incident  to  the  Acquisition  and  Gov- 
ernment by  the  United  States,  of  Island  Territory,  by  Simeon  K.  Bald- 
win, Ll^.I).,  Harvard  Law  Review,  vol.  xii,  p.  6  ;  Report  on  the  Legal 
.Status  of  the  Territory  and  Inhabitants  of  the  Islands  acquired  l)y  the 
United  States  during  the  War  with  .Spain,  considered  with  Reference  to 
the  Territorial  I5oundaries,  the  Constitution  and  Laws  of  the  United 
States.  Charles  E.  Magoon,  Law  Officer,  Division  of  Insular  Affairs, 
War   Department,   Washington,   1900. 


THE   UNITED    STATES  323 

The  court  laid  down  principles  at  this  time,  which, 
strictly  in  harmony  with  earlier  decisions,  are  the  basis 
on  which  civil  affairs  in  our  outlying  possessions  must 
be  administered. 

Congress  in  governing  the  territories  is  subject  to  the 
Constitution ;  therefore  all  the  limitations  of  the  Consti- 
tution which  are  applicable  to  Congress  in  exercising 
this  authority  necessarily  limit  its  power  on  this  subject/ 
The  civil  government  of  the  United  States  cannot  extend 
immediately  or  of  its  own  force  over  territory  acquired 
by  war.  Such  territory  must  necessarily,  in  the  first 
instance,  be  governed  by  the  military  power  under  the 
control  of  the  President  as  commander-in-chief.  Civil 
government  cannot  take  effect  at  once,  as  soon  as  posses- 
sion is  acquired  under  military  authority,  or  even  as  soon 
as  that  possession  is  confirmed  by  treaty.  It  can  only  be 
put  in  operation  by  the  appropriate  political  department 
of  the  government  at  such  time  and  in  such  degree  as 
that  department  may  determine.  The  practical  interpre- 
tation put  by  Congress  upon  the  Constitution  has  long 
been  continued  and  uniform  to  the  effect  that  the  Consti- 
tution is  applicable  to  territories  acquired  by  purchase  or 
conquest  only  when,  —  and  so  far  as,  —  Congress  shall 
direct.  The  power  to  acquire  territory  by  treaty  implies 
not  only  the  power  to  govern  such  territory  but  also  to 
prescribe  upon  what  terms  the  United  States  will  receive 
its  inhabitants,  and  what  their  status  shall  be  in  what 
Chief-Justice  Marshall  termed  the  "  American  empire." 
There  seems  to  be  no  middle  ground  between  this  posi- 
tion and  the  doctrine  that  if  their  inhabitants  do  not  be- 
come immediately,  upon  annexation,  citizens  of  the  United 
States,  their  children  thereafter  born,  whether  savages  or 
civilized,  are  citizens  and  entitled  to  all  the  rights,  privi- 
leges, and  immunities  of  citizens. 

In  the  case  of  Porto  Rico  and  the  Philippines  the  civil 
rights  and  political  status  of  the  native  inhabitants  is 
determined  by  Congress.  In  every  case  of  the  acquisition 
of  territory  by  the  United  States,  —  as  that  of  Mexico, 
Alaska,   Porto  Rico,  and  the  Philippines,  —  there  is  an 

1  Downes  v.  Bidwell,  1S2  U.  S.  Reports,  244  (1901). 


324     A    CONSTITUTIONAL    HISTORY    OF 

implied  denial  of  the  right  of  the  inhabitants  to  American 
citizenship  until  Congress  by  further  action  signifies  its 
assent.  Grave  apprehensions  of  danger  were  felt  by- 
many  eminent  men,  at  the  time  of  the  acquisition  of  Porto 
Rico  and  the  Philippines,  lest  an  unrestrained  possession 
of  power  by  Congress  might  lead  to  unjust  and  oppressive 
legislation  in  which  the  natural  rights  of  the  territories, 
or  their  inhabitants,  may  be  engulfed  in  a  centralized 
despotism.  These  fears,  however,  find  no  justification  in 
the  action  of  Congress,  in  the  past  century,  nor  in  the 
conduct  of  the  British  Parliament  towards  its  outlying 
possessions  since  the  American  revolution.  The  wisdom 
and  discretion  of  Congress  will  determine  the  question.^ 

Porto  Rico  is  a  territory  appurtenant  and  belonging  to 
the  United  States,  but  is  not  a  part  of  the  United  States 
within  the  revenue  clauses  of  the  Constitution.  On 
May  I,  1900,  Congress  passed  a  tariff  law,  —  known  as 
the  Foraker  act,  —  imposing  duties  upon  imports  from 
Porto  Rico.  Congress  could  lawfully  impose  a  duty  upon 
imports  from  Porto  Rico,  notwithstanding  the  provision 
of  the  Constitution  that  all  duties,  imports,  and  excises 
shall  be  uniform  throughout  the  United  States.  This 
conclusion  was  reached  by  the  supreme  court,  —  four  of 
the  nine  justices  dissenting  from  the  opinion. 

"  In  determining  the  character  of  a  tax,"  said  the  court 
in  its  opinion,  "  it  is  important  to  consider  whether  the 
duty  be  laid  for  the  purpose  of  adding  to  the  revenues 
of  the  country  from  which  the  export  takes  place,  or  for 
the  benefit  of  the  territory  into  which  they  are  imported. 
The  Foraker  act  provided  that  whenever  the  legislative 
assembly  of  Porto  Rico  should  have  enacted  and  put  into 
operation  a  system  of  local  taxation  to  meet  the  necessi- 
ties of  the  government  of  Porto  Rico,  as  established  by 
Congress,  and  should  notify  the  President,  he  should 
make  proclamation  thereof,  and  thereupon  all  tariff  duties 
on  merchandise  and  articles  going  into  Porto  Rico  from 
the  United  States  or  coming  into  the  United  States  from 
Porto  Rico  should  cease."  ^ 

1  Downes  v.  Bidwell,  182  U.  S.  Reports,  280-2S1. 
*  Id.  post. ;  Dooley  v.  U.  S.  183  U.  S.  Reports,  p.  151. 


THE   UNITED    STATES  325 

The  fund  accruing  from  the  Porto  Rico  tariff  con- 
stituted a  separate  fund,  exclusively  at  the  disposal  of 
the  President  for  the  benefit  of  Porto  Rico.  The  Porto 
Rico  tariff  is  a  temporary  tariff.  There  is  a  wide  differ- 
ence between  the  full  and  paramount  power  of  Congress 
in  legislating  for  a  territory  in  the  condition  of  Porto 
Rico,  and  the  power  of  Congress  with  respect  to  the 
states,  which  is  merely  incident  to  its  right  to  regulate 
commerce.^  But  to  this  opinion  of  the  court  four 
justices  dissented,  holding,  substantially,  as  Mr.  Justice 
Harlan  held,  that  "  Porto  Rico  became,  after  the  ratifica- 
tion of  the  treaty  with  Spain  (in  1899),  a  part  of,  and 
subject  to,  the  jurisdiction  of  the  United  States,  in  respect 
to  all  its  territory  and  people;  and  Congress  could  not 
thereafter  impose  any  duty  impost  or  excise  with  respect 
to  that  island  and  its  inhabitants  which  departed  from 
the  rule  of  uniformity  established  by  the  Constitution."  ^ 

The  court  held,  in  another  case,  that  Porto  Rico  and 
the  Philippines  were  not  the  subject  of  distinction  after 
the  ratification  of  the  treaty  of  April  11,  1899.- 

The  status  of  the  outlying  possessions  of  the  United 
States,  is  therefore,  according  to  the  principles  of  the 
Constitution,  as  laid  down  by  the  supreme  court,  wholly 
determinable  by  Congress.  While  in  theory  Congress  has 
power  to  establish  in  these  territories  a  government  dif- 
ferent from  that  which  it  has  established  in  other  terri- 
tories from  time  to  time  organized,  —  and  doubtless,  from 
the  nature  of  the  case  Congress  will  establish  a  different 
government  because  of  the  condition  of  the  people  in 
these  outlying  possessions,  —  it  does  not  follow  that  Con- 
gress will  establish  a  government  there  which  in  any  true 
sense  can  be  described  as  a  "  centralized  despotism." 
The  outlook  is  that  both  in  Porto  Rico  and  in  the  Philip- 
pines, and  especially  in  the  latter,  the  government  estab- 
lished will  be  of  a  military  type  for  a  long  time  to  come. 
This  type  seems  the  only  type  that  can  be  set  up  among 
a  people  such  as  inhabit  the  Philippine  islands.     From 

1  Mr.  Justice  Harlan,  dissenting  opinion,  in  Downes  v.  Bidwell,  182 
U.  S.  Reports. 

2  Fourteen  Diamond  Rings,  Emil  J.  Pepke  Claimant  v.  U.  S.,  183 
U.  S.  Reports,  176  (1901). 


326     A    CONSTITUTIONAL    HISTORY    OF 

a  constitutional  point  of  view  these  islands  present  no 
special  difficulty  in  government.  Congress  is  no  more 
supreme  respecting  them  and  their  inhabitants  than  it  has 
been  respecting  the  territory  and  inhabitants  acquired  as 
Mexico  or  Alaska.  Though  each  acquisition  of  territory 
by  the  United  States,  —  Florida,  Mexico,  Alaska,  Porto 
Rico,  and  the  Philippines,  —  and  other  acquisitions  of  less 
magnitude  have  been  made  by  treaty,^  it  is  well  estab- 
lished constitutional  law  that  "  a  treaty  does  not  incor- 
porate territory  without  the  consent  of  Congress."  ^ 

Congress  represents  but  does  not  embody  the  sover- 
eignty of  the  United  States.  The  President  represents 
that  sovereignty;  the  supreme  court  represents  that  sov- 
ereignty; but  neither  President  nor  court  embodies  that 
sovereignty.  That  sovereignty  is  embodied  in  the  people 
of  the  United  States. 

In  the  new  era  upon  which  the  United  States  has 
entered  the  principles  of  the  Constitution  will,  we  may 
confidently  assert,  remain  the  same  as  in  the  past.  The 
American  system  of  government  as  outlined  in  the  Con- 
stitution is  intended,  as  was  said  of  it  many  years 
ago  by  Chief-Justice  Marshall,  "  to  endure  for  ages  to 
come."  But  the  law  of  permanence  is  the  law  of  adapta- 
tion ;  and  the  principles  of  American  constitutional  gov- 
ernment, it  is  believed,  are  adaptable  to  the  exigencies 
of  the  future. 

1  Except  the  Oregon  country  and  a  few  islands,  chiefly  in  the  Pacific 
Ocean,  acquired  by  discovery. 

2  Fourteen  Diamond  Rings,  Emil  J.  Pepke,  Claimant  v.  U.  S.,  183 
U.  S.  Reports,  176  (1901). 


THE   UNITED    STATES  327 


CHAPTER   XV 

summary:   the  forces  in  the  civil  evolution 

The  eighteenth  and  nineteenth  centuries  were,  in  America, 
an  age  of  constitutional  reform.  Attention  long  directed 
to  the  origin  and  growth  of  the  federal  Constitution  has 
in  later  years  been  directed  to  the  origin  and  growth  of 
the  organic  law  of  the  several  commonwealths,  and  the 
conclusion  has  been  the  same,  that  the  supreme  laws  of 
America,  finding  expression  in  constitutions  of  govern- 
ment, have,  during  these  centuries,  slowly  responded  to 
the  will  of  the  people.  That  will  has  not  always  been 
wisest  or  best.  The  elements  of  imperfection  which  cling 
to  all  human  work  are  plainly  discernible  in  the  body  of 
laws  which,  under  the  name  of  constitutions,  distinguish 
the  civil  activity  of  the  American  people.  The  very 
rigidity  of  a  written  instrument  has  compelled  amend- 
ment in  order  that  there  might  exist  that  correspondence 
of  expression  to  fact  which  above  all  else  is  demanded 
in  legislation  and  in  the  formulation  of  a  working  plan 
of  government.  From  that  hour  in  the  early  years  of 
the  last  decade  of  the  eighteenth  century,  when  political 
parties  clearly  aligned  themselves  in  America,  —  and  the 
year  1792  may  be  taken  as  the  time,  —  until  this  present, 
popular  government  as  expressed  in  successive  administra- 
tions, dominated  by  party  theories,  has  done  no  more  than 
to  hasten  or  to  delay  that  civil  adjustment,  which  must 
ever  go  on  in  order  that  the  state  may  be  organized  under 
working  principles,  or,  which  signifies  the  same,  under 
political  theories  which  for  the  time  being  men  interpret 
as  conducive  to  the  general  welfare.  There  is  more  of 
opportunism  than  philosophy  in  the  conduct  of  the  public 
business. 

It  is  to  the  state  constitutions  that  we  look  for  evidence 
of  attempts  to  make  special  adjustments  to  the  exigencies 


328     A    CONSTITUTIONAL   HISTORY    OF 

of  public  affairs.  It  is  in  these  instruments  that  we  find 
recorded  the  important  details  of  that  civil  evolution  ever 
going  on  in  America.  No  other  people  ever  formulated 
political  tlieories  in  constitutional  form  as  did  the  Ameri- 
cans in  the  eighteenth  century.  The  state  constitutions 
preceded  the  national  Constitution  and  practically  deter- 
mined its  form,  its  arrangement,  and  its  style.  The  work- 
ing scheme  of  a  parliament  is  plainly  visible  in  the  details 
of  the  national  Constitution  which  regulate  the  procedure 
of  Congress,  the  rights  and  privileges  of  senators  and 
representatives,  and  the  relation  of  the  legislature  to  the 
executive  and  judiciary  departments  of  the  government. 
These  parliamentary  details  were  nicely  observed  in  every 
state  before  the  national  Constitution  was  made.  Out  of 
the  mass  of  local  rules  and  regulations  the  federal  con- 
vention composed  the  provisions  in  the  supreme  law 
which  are  strictly  parliamentary  in  their  nature.  This 
working  body  of  rules  comprises  the  manual  of  pro- 
cedure, written  or  unwritten,  which  every  parliamentary 
body  must  obey  in  order  to  conduct  public  business  with 
efificiency. 

Turning  to  the  provisions  in  the  national  instrument 
regulative  of  the  executive,  a  like  parentage  is  discernible : 
the  practice  of  the  state  executives  at  the  time  the  federal 
convention  assembled.  That  practice,  somewhat  loosely 
outlined  in  the  early  state  constitutions,  was  itself  the 
resultant  of  many  struggles  and  adjustments  in  colonial 
times.  Between  the  legislative  and  the  executive  there 
has  ever  been  and  there  doubtless  ever  will  be,  a  struggle 
such  as  Jefferson  depicted  in  1798:  "It  is  now  under- 
stood that  two  political  sects  have  arisen  within  the  United 
States :  the  one  believing  that  the  executive  is  the  branch 
of  our  government  which  needs  more  support,  the  other, 
that  like  the  analogous  branch  in  the  English  government, 
it  is  already  too  strong  for  the  republican  parts  of  the 
Constitution  ;  and  therefore,  in  equivocal  cases,  they  in- 
cline to  the  legislative  power;  the  former  of  these  are 
called  Federalists,  sometimes  Aristocrats  or  Monocrats, 
and  sometimes  Tories,  after  the  corresponding  sect  in  the 
English  government  of  the  same  definition ;  the  latter  are 
styled  Republicans,  Whigs,  Jacobins,  Anarchists,  Disor- 


THE   UNITED    STATES  329 

ganizers,  etc. ;  these  terms  are  in  familiar  use  with  most 
persons.  I  beUeve  Whig  and  Tory  characterize  the  distin- 
guishing principles  of  the  two  sects."  There  is  a  contest 
between  legislative  and  executive  functions  because  some 
men  incline  to  confide  the  conduct  of  public  business  to  one 
person  rather  than  to  a  group  of  persons;  to  King  or 
President  rather  than  to  Parliament  or  Congress.  The 
working  harmony  of  a  written  or  of  an  unwritten  consti- 
tution by  which  the  executive  and  the  legislative  perform 
their  respective  functions  is  a  harmony  agreed  upon,  — 
a  convention  worked  out  by  hard  necessity,  —  not  neces- 
sarily a  final  definition  of  civil  forces,  or  even  a  precise 
formulation  of  natural  relations.  Government  is  a  fiction 
agreed  upon  and  as  conventional  as  the  arbitrary  sub- 
division of  nature  into  animal  or  vegetable  or  mineral ; 
or  as  the  classification  of  plants  in  botany.  Yet  the  con- 
viction grows  that  government  is  natural  because,  as  the 
civil  adjustment  proceeds,  from  age  to  age,  men  believe 
that  life  realizes  unto  itself  its  desires  in  proportion  as 
government  is  adapted  to  the  nature  of  man.  It  is  on 
this  abstract  proposition  that  all  constitutions  and  laws 
rest ;  and  the  labor  to  realize  the  value  of  the  proposition 
works  out  the  perpetual  adjustment  of  theory  and  form 
to  fact. 

If  we  turn  to  the  provisions  in  the  national  Constitution 
regulating  the  judiciary,  a  like  purpose  and  a  like  parent- 
age are  discernible  as  with  the  legislative  and  the  execu- 
tive. The  judicial  function  was  as  clearly  outlined  in  the 
early  state  constitutions  as  in  the  practice  of  the  English 
people  at  home,  and  more  clearly  than  in  the  practice 
of  any  continental  nation.  The  founders  of  the  first  state 
governments  simply  transformed  into  a  written  constitu- 
tion the  judicial  practices  which  had  evolved  in  colonial 
times.  Most  elaborate  of  all  statements  of  the  time  was 
the  judiciary  article  in  the  first  Maryland  constitution ; 
but  the  analogous  article  in  other  states  exemplified  the 
ruling  canon  of  the  hour,  —  to  differentiate  the  functions 
of  government ;  to  make  each  group  of  functions,  — 
legislative,  executive,  judicial,  —  clear,  and  as  far  as  prac- 
ticable, to  give  to  each  group  its  specific  powers  and 
duties,    safeguarded   by   well-defined   limits.      At   points 


330     A    CONSTITUTIONAL    HISTORY    OF 

where  theory  must  perforce  yield  to  fact,  and  the  arti- 
ficiality of  government  could  not  be  hidden,  it  was  left 
to  practice,  and  the  compulsions  of  harmony  and  general 
interest,  to  organize  the  so-called  three  departments  or 
functions  as  a  working  civil  unit.  And  it  must  be  ac- 
knowledged, after  the  tests  and  trials  of  more  than  a 
century,  that  the  defects  in  the  American  civil  system, 
whether  state  or  national,  have  not  proved  incident  to 
the  presence  or  the  absence  of  mere  words  or  phrases, 
defining  or  omitting  to  define  the  precise  relations  of 
either  department  of  government  to  the  others.  All 
the  discords  and  commotions  which  have  wrought  havoc 
in  America  have  originated  outside  of  our  constitutions 
of  government.  Without  exception  in  so  far  as  these 
commotions  have  affected  our  organic  laws,  the  effect 
has  been  due  to  the  persistent  efforts  of  groups  of  men 
to  read  into  the  organic  law  an  interpretation  favor- 
able to  their  selfish  interests.  The  most  notable  adjust- 
ment thus  far  made  in  America,  —  the  abolition  of  slavery 
and  the  admission  of  the  former  slave  to  the  rights  of 
the  citizen,  —  exemplifies  the  whole  procedure  of  civil  evo- 
lution. That  adjustment,  that  abolition,  that  enfranchise- 
ment would  never  have  occurred  had  it  not  been  forced 
by  grinding  necessity,  just  as  the  national  organization 
itself,  —  under  the  form  of  a  plan  of  general  government 
expressed  in  a  written  constitution,  —  was  the  result  of 
grinding  necessity  in  the  eighteenth  century.  In  its  large 
meaning,  the  civil  war  adjusted  the  theory  of  free  govern- 
ment to  the  facts.  It  was  as  great  a  triumph  for  the 
white  race  as  for  the  black.  It  was  the  victory  of  an 
idea  which  for  ages  had  been  working  out  its  own  ex- 
pression in  the  civil  life  of  men.  Looking  back  over  the 
long  struggle  which  we  call  civilization,  men  please  them- 
selves with  belief  in  the  altruism  of  democracy ;  but  a 
sterner  adherence  to  the  course  of  human  conduct  would 
confess  that  the  phenomenal  altruism  apparently  won  by 
the  American  people  through  civil  war  was  no  more  than 
a  phase  of  racial  adjustment  in  America.  With  the  African 
suffered  to  remain  in  Africa,  all  the  civil  wars  of  Christen- 
dom could  not  have  affected  his  present  status  other  than 
as  it  is  in  the  United  States.     It  might  seem  excusable 


THE   UNITED    STATES  33 1 

to  draw  the  inference  that  violent  interference  with  the 
races  of  men  in  their  natural  habitat  compels  later  civil 
adjustments  of  a  serious  nature.  From  which  proposition 
one  might  possibly  draw  the  civil  corollary  that  the  Fili- 
pinos, in  all  probability,  will  never  be  thrust  into  citizen- 
ship on  so  wholesale  a  scale  as  were  the  negroes  in  the 
United  States.  But  the  operation  of  democratic  ideas 
will  doubtless  effect  adjustments  in  the  Philippines  advan- 
tageous to  the  native  races. 

These  stupendous  amendments  of  the  civil  organiza- 
tion startle  men  by  their  consequences  even  more  than 
do  the  necessities,  which  seem  to  compel  them,  dismay 
men  by  their  difficulty.  After  all,  the  adjustment  is  only 
an  experiment ;  the  only  permanent  feature  being  that 
men  rarely  if  ever  retvirn  to  the  dominating  ideas  from 
which  they  sought  relief  by  altering  or  amending  the 
supreme  law.  But  the  amendment  itself  is  amendable ; 
the  adjustment  itself  subject  to  readjustment;  for  society 
is  ever  in  a  state  of  flux,  and  the  equities  of  the  civil 
state  are  the  privileges  of  opportunism.  Governmicnt  is 
a  perpetual  process  of  corrections. 

In  our  own  history  the  elements  of  this  process  are 
continually  in  evidence.  Not  a  year  passes  without  its 
body  of  amendments  to  the  organic  laws  of  the  land. 
Down  to  1900  the  states  adopted  one  hundred  and  twenty- 
one  constitutions,  and  to  each  of  these,  save  the  last,  —  for 
the  proposed  amendment  of  which  time  has  much  in  store, 
—  no  fewer  than  three  thousand  amendments  have,  in  the 
aggregate  been  offered,  and  to  the  national  instrument 
about  fifteen  hundred.  Few  of  these  can  be  said  to  sig- 
nify other  than  a  transient  restlessness,  or  an  obscure  or 
hasty  attempt  to  remedy  a  supposed  public  evil.  The  ele- 
vation of  the  written  organic  law  as  a  fetish  has  now  for 
upwards  of  a  century  encouraged  men  to  believe  that  in 
order  to  cure  public  ills  it  is  necessary  only  to  change  the 
wording  of  the  Constitution.  Yet  the  inspection  of  this 
mass  of  proposed  amendment,  so  far  as  inspection  is  now 
possible,  leads  to  the  conviction  that  only  a  small  portion 
of  the  proposed  changes  were  intended  to  effect  more  than 
what  may  be  characterized  as  parliamentary  details ;  that 
is,  terms  of  office,  times  and  methods  of  election,  salaries, 


332     A    CONSTITUTIONAL   HISTORY    OF 

business  procedure  and  the  like;  relatively  few  of  the 
proposed  amendments  going  to  the  essentials  of  govern- 
ment, or  doing  else  than  merely  to  perpetuate  present  or 
prevailing  conditions  under  other  names.  The  excep- 
tions, in  proposed  changes  in  state  constitutions,  —  ex- 
ceptions which  note  the  existence  of  great  civil  problems 
unsolved,  —  have  been  exclusively  administrative  in  char- 
acter. This  hint  at  a  fourth  estate  in  government  —  the 
administrative  —  is  frequent  in  the  reforms  demanded 
after  i860.  The  applicability  of  the  demand  for  a  more 
effective  administration  of  public  affairs  must  be  ac- 
knowledged when  we  read  the  administrative  articles 
inserted  in  the  later  constitutions,  especially  those  of 
western  states.  Our  organic  laws,  while  not  losing  their 
traditional  constitutional  character,  are  rapidly  assuming 
administrative  features  which  are  transforming  them  into 
new  instruments.  The  American  people  have  learned 
that  the  chief  matter  of  interest  to  them  practically  is  not 
the  theory  of  the  state,  but  the  administration  of  affairs. 
Thus  it  follows  that  our  organic  laws  contain  rarely  a 
definition,  as,  for  example,  do  the  French  constitutions, 
but  ours  abound  increasingly  with  administrative  features, 
in  which  respect  they  approach  the  type  of  European  con- 
stitutions. Doubtless  government  in  America  is  defective 
as  a  matter  of  administration ;  the  individualism  which 
was  enthroned  in  America  at  the  time  of  the  revolution, 
and  which  dictated  the  form  and  substance  of  the  earlier 
constitutions,  would  not  tolerate  the  nice  administration 
of  the  public  business  familiar  to  Frenchmen,  Germans, 
and  Italians.  The  explanation  is  easy.  The  Americans 
in  the  eighteenth  century  were  a  homogeneous  people,  for 
civil  purposes,  and  had  abundance  of  room  wherein  to 
live,  move,  and  have  their  being.  The  pressure  of  popu- 
lation, as  gradually  felt  in  America,  has  compelled  the 
resort  to  administrative  reforms.  The  officials  in  any 
state  remain  but  a  brief  time  in  authority.  Life  tenure  of 
office  has  been  abolished,  or,  to  state  the  fact  as  appli- 
cable to  most  of  the  commonwealths,  has  never  been 
adopted  in  America.  The  life  tenure  of  the  judiciary  in 
Massachusetts  is  a  survival,  and  the  twenty-one  and  four- 
teen-year terms   for  judges,   in   Pennsylvania  and   New 


THE   UNITED    STATES  333 

York,  are  an  anomaly.  The  limit  for  executives,  whether 
mayor,  governor,  or  President,  is  four  years ;  the  limit 
for  legislators  is  two  or  four  years  in  the  states,  or  two 
or  six  in  the  United  States,  according  to  the  membership, 
whether  of  the  House  or  the  Senate.  The  usual  tenure 
for  judges  is  from  five  to  seven  years.  For  minor  offi- 
cials, that  vast  body  to  whom  the  local  government  of 
the  country  is  entrusted,  the  term  is  seldom  more  than 
three  years.  It  was  thought  at  the  time  when  our  state 
governments  were  established  that  a  brief  official  term 
would  insure  responsibility  by  a  sort  of  popular  educa- 
tion ;  frequent  elections  being  believed  to  be  educative, 
both  for  the  electors  and  the  elected.  But  for  some 
reason  these  carefully  wrought  devices  have  failed  to 
effect  the  desired  end ;  officialism  has  taken  unto  itself 
a  habitation  and  a  name,  and  what  is  worse,  a  method, 
and  the  public  business  has  languished.  It  took  about 
eighty  years  of  hard  experience  to  teach  the  American 
people  the  futility  of  the  device  which  they  had  trusted ; 
whereupon  they  proceeded  to  adjust  their  organic  laws 
to  the  facts,  and  inserted  administrative  details  as  the 
corrective  of  official  incompetency  or  neglect.  In  other 
words,  the  American  people  discovered  that  they  had  con- 
structed an  effective  machine  for  raising  revenue,  when 
they  organized  their  legislative  department,  but  they  had 
neglected  to  construct  an  equally  effective  machine  for 
administering  the  funds  thus  raised.  It  was  the  service 
of  education  which  compelled  this  amendment.  With 
the  appropriation  of  the  public  lands,  or  portions  of  them, 
as  school  funds,  the  first  realization  of  the  need  of  an  ade- 
quate system  of  administration  began  slowly  to  affect  the 
public  mind.  As  an  immediate  result,  the  state  constitu- 
tions were  revised,  and  a  new  article  was  inserted  under 
the  title  "  Education."  The  states  then  became  paternal, 
and  began  the  many  public  institutions,  hospitals,  asylums, 
reformatories,  training  schools,  colleges,  and  universities, 
with  their  special  departments  of  agriculture,  applied 
science,  and  the  like.  Whether  or  not  democracy  is  altru- 
istic, it  is  undoubtedly  true  that  it  is  in  America.  But  the 
altruistic  ventures  of  the  states  demanded  vast  sums  of 
money  and  an  effective  administration  of  the  funds.    Out 


334     A    CONSTITUTIONAL   HISTORY    OF 

of  this  condition  of  affairs  grew  the  numberless  adminis- 
trative changes  in  the  earher  constitutions ;  changes  so 
marked  that  the  later  instruments  differ  from  the  earlier 
chiefly  by  the  inclusion  of  administrative  provisions. 

But  no  amendments  have  as  yet  been  made,  strictly  of 
an  administrative  nature,  to  the  national  Constitution,  save 
by  the  adoption  of  three  lines,  in  a  clause  thrice  repeated 
in  the  Constitution  (the  only  instance  of  repetition  in  the 
instrument),  found  at  the  close  of  the  thirteenth,  four- 
teenth, and  fifteenth  amendments,  —  a  clause  which  might 
seem  meaningless  to  many,  namely,  "  The  Congress  shall 
have  power  to  enforce,  by  appropriate  legislation,  the 
provisions  of  this  article."  Language  of  this  kind  seems 
at  first  superfluous  in  an  organic  law  because  presump- 
tion w^ould  run  in  favor  of  the  construction  that  the  inclu- 
sion of  a  duty  is  the  inclusion  of  power  to  perform  it. 
There  was,  however,  in  the  three  amendments  with  which 
the  Constitution  concludes,  an  administrative  feature  of 
the  highest  significance,  and,  throughout  all  its  dealings 
with  the  questions  germane  to  the  three  amendments, 
Congress  has  not  failed  to  attempt,  at  least,  a  rational 
administration,  or  to  provide  for  the  same,  in  its  legisla- 
tion. The  states,  having  immediately  the  burden  of  local 
government  and  administration,  have  been  compelled  to 
make  explicit  administrative  provisions  in  their  organic 
laws ;  the  neglect  to  do  so  being  inexcusable,  as  there 
was  no  lower  body  or  political  organization  upon  whom 
the  burden  could  be  laid.  Thus  it  is  that  all  so-called 
municipal  or  county  institutions  are  subject  to  state  in- 
spection, under  the  compulsion  of  administrative  needs. 
It  follows  also  that  of  the  nearly  four  thousand  volumes 
of  state  laws  a  respectable  portion  bear  directly  on  strictly 
administrative  matters ;  yet  this  portion  bears  later  dates 
than  one  might  expect  to  find,  for  the  greater  bodv  of 
strictly  administrative  legislation  has  been  enacted  since 
the  civil  war. 

It  would  seem  then  that  in  the  evolution  of  popular 
government  in  America  the  order  was  rational,  if  not 
natural,  —  the  formulation,  first  of  the  theory  of  the  state 
in  a  working  organic  law.  and  later,  the  formulation  of 
administrative  directions  in  order  to  adapt  the  theory  to 


THE   UNITED    STATES  335 

the  fact.  Thus  all  constitutional  provisions  regulating 
private  corporations,  such  as  banks,  public  carriers,  insur- 
ance companies,  and  other  private  corporations,  —  and 
such  provisions  date  from  the  New  York  constitution  of 
1846,  —  are,  strictly  speaking,  administrative  in  their 
nature,  as  is  the  legislation  based  on  them.  The  first  con- 
stitutions made  no  mention  of  banks,  public  carriers,  or 
private  corporations  in  general,  although  such  bodies 
w^ere  in  existence  at  the  time  the  eighteenth  century 
constitutions  were  made.  At  first  the  regulation  of  such 
corporations  was  entrusted  to  the  legislatures,  but  the 
confidence  of  the  people  being  misused,  they  sought  relief 
by  placing  in  the  constitution  of  the  state  regulations  of 
a  permanent  character  with  which  the  legislature  must 
comply.  It  was  believed  a  century  ago  that  a  constitu- 
tion was  a  last  word  on  government,  but  experience  has 
not  confirmed  the  belief.  The  American  people  make  a 
new  state  constitution  every  year,  though  the  immediate 
product  is  the  work  of  a  single  commonwealth.  No  state 
escapes,  nor  can  escape,  the  influence  of  other,  and  es- 
pecially, of  contiguous  states,  and  there  is  not  an  instance 
in  our  constitutional  history  of  such  isolation  as  has 
enabled  or  encouraged  the  people  of  a  state  to  formulate 
a  constitution  distinctly  different  from  the  constitution 
of  some  other  state.  This  conscious,  or  unconscious, 
copying  has  been  the  natural  result  of  the  migration  of 
population ;  the  East  sending  forth  its  children  into  the 
West;  the  older  states  of  the  South  thus  populating  the 
Southwest ;  the  older  states  of  the  North,  the  Northwest. 
Mr.  Tilden,  in  a  public  address,  once  remarked,  evidently 
with  much  amusement  to  himself,  on  the  ease  with  which 
a  constitutional  provision  finds  its  way  over  the  land. 
He  relates  that  while  a  member  of  the  New  York  conven- 
tion of  1846,  he  listened,  indifferently,  to  a  proposition 
advocated  by  a  member,  for  the  regulation  of  banks  and 
banking.  By  some  inadvertence  which  Mr.  Tilden  con- 
fesses that  he  cannot  explain,  the  provision,  though  not 
understood  by  the  convention,  was  favorably  reported 
and  doubtless  by  inadvertence  finally  inserted  in  the 
finished  constitution ;  "  and  for  the  same  reason,"  remarks 
Mr.  Tilden,   "  it  was  adopted  into  the  constitutions  of 


336     A    CONSTITUTIONAL   HISTORY    OF 

some  seven  western  states."  Now  the  article  thus  irra- 
tionally elevated  to  the  rank  of  the  ori^anic  law  expressed 
the  demand  of  the  American  people  for  the  regulation  of 
banks  and  banking.  The  panic  of  1837,  engendered  in  a 
long  period  of  irresponsible  banking,  had  brought  sharply 
to  public  attention  the  necessity  for  some  regulative 
article.  Mr.  Tilden  might  have  added  that  the  very 
clause,  the  unreasonable  course  of  which  provoked  his 
remarks,  became,  in  1863,  the  foundation  of  the  national 
banking  act,  in  so  far  as  that  act  secures  depositors  in 
national  banks. 

The  educational  provisions  inserted  in  the  first  consti- 
tution of  Indiana,  in  1816,  may  be  said  to  be  the  parent  of 
the  elaborate  articles  on  the  subject  in  all  the  later  west- 
ern constitutions;   yet  Pennsylvania,  in  1776,  and  Massa- 
chusetts, in  1780,  established  the  precedent  which  Indiana 
followed.     The  local  government  of   Kentucky  was  the 
same  as  that  of  the  parent  state,  Virginia;    and  that  of 
Tennessee,  of  the  parent  state.  North  Carolina.     Missis- 
sippi   and    Alabama   adhered   to    Carolina   and    Georgia 
models,  as  did  Michigan  and  Iowa  to  those  set  by  New 
York  and  Pennsylvania.    California,  in  1849,  utilized  both 
northern   and    southern   precedents,    and   came   into   the 
Union   with   the  first   composite  constitution   adopted   in 
America.    Thus  when  we  seek  out  the  factors  in  our  civil 
evolution  we  begin  the  long  search  for  precedents,  which 
sooner  or  later  brings  us  to  the  work  of  the  original  states. 
The  civil  evolution  here  has  therefore  much  in  common 
with  the  civil  evolution  in  the  old  world;    the  migration 
of  races  and  peoples  accounting  for  the  early  establish- 
ment of  customs,  the  enactment  of  laws,  the  persistency 
of  traditions.     If  America  had  no  written  constitutions, 
the  people  of  the  several  states  would  nevertheless  possess 
customs  and  traditions,  having  the  force  of  laws,  derived 
from  older  communities  and  introduced  with  the  coming 
of  settlers  from  the  eastern  portion  of  the  country.     To 
this  law  Nevada  is  in  part  an  exception,  as  also  Wyoming 
and  Idaho,  which  commonwealths  derived  much  of  their 
civil  organization   from  California  and  Oregon  models. 
In   1889,  when   four  new  states  were  admitted  into  the 
Union,  — the  Dakotas,  Montana,  and  Washington,  and  in 


THE   UNITED    STATES  337 

1890,  when  Idaho  and  Wyoming  were  admitted,  —  the 
novel  condition  was  disclosed  of  an  eastward  flow  of 
population,  these  new  commonwealths  having  received 
large  masses  of  population  from  the  Pacific  slope.  Every 
year  shows  a  less  distinctively  westward  movement  of 
population,  the  lines  now  crossing  and  intersecting,  as 
people  freely  remove  eastward,  westward,  northward,  and 
southward;  the  result  of  which  will  be  recorded  as  such 
causes  have  recorded  results  in  the  past,  in  composite  con- 
stitutions ;  the  organic  laws  of  the  states  thus  slowly  ap- 
proaching homogeneity.  This  slow  change  exemplifies 
the  operation  of  that  grand  law  of  evolution,  —  that  the 
tendency  in  nature  is  from  the  heterogeneous  to  the  homo- 
geneous, a  law  which  works  for  harmony.  It  follows 
that  with  this  slow  change,  or  perhaps  under  special  con- 
ditions accelerated  by  economic  pressure  and  interest, 
the  bonds  of  the  Union  became  stronger  and  the  perpetuity 
of  the  republic  assured.  Perhaps  the  law  might  be 'stated, 
somewhat  rudely,  in  this  fashion :  that  with  the  most 
perfect  interchange  and  intercourse,  —  economic,  social, 
political,  —  the  diversities  which  otherwise  might  cause 
friction  disappear,  and  the  civil  organization  attains 
perfection. 

In  this  process  of  gradual  conformity  to  a  common 
ideal,  political  parties  serve  as  agencies,  not  as  principals. 
They  compromise  the  people  as  working  political  units, 
but  they  do  not  take  the  place  of  ideas.  There  seems,  at 
present,  no  other  means  for  popular  government  to  use 
than  parties,  but  they  should  not  be  confounded  with  the 
governing  forces  in  the  republic.  He  reads  history  to 
little  profit  who  confuses  the  career  of  political  parties 
with  the  forces  which  determine  the  course  of  civil  affairs. 
Parties,  like  all  agents,  abide  the  will  of  their  principals. 
The  history  of  parties  is  indirectly  the  history  of  ideas. 
In  the  early  part  of  this  book  may  be  found  the  enuncia- 
tion of  the  first  principles  of  government  in  America. 
Men  of  different  parties  accept  "  The  Federalist  "  as  the 
earliest  formulation  of  these  principles.  Yet  nowhere 
do  the  authors  of  "  The  Federalist  "  exalt  parties  as  orig- 
inal forces  in  government.  Indeed,  it  would  be  difficult  to 
discover  a  passage  in  "  The  Federalist  "  which  makes  any 


338     A    CONSTITUTIONAL    HISTORY    OF 

reference  to  parties  at  all.  When  the  Constitution  was  in 
process  of  formation,  its  framers,  so  far  as  the  records 
of  their  discussion  show,  made  no  account  of  political 
parties.  Dr.  Franklin  hinted  strongly  in  his  well-known 
speech  that  the  fate  of  the  new  government  was  identi- 
fied with  the  administration  of  the  powers  granted  to  it; 
but  he  did  not  attribute  to  political  parties  that  supreme 
place  which,  at  first  thought,  many  now  assign  them.  A 
party  is  the  means  of  political  expression  and  of  civil  ad- 
ministration, but  it  is  not  to  be  confounded  with  the 
essentials,  the  principles,  on  which  government  is  founded. 
Therefore,  it  follows  that  in  tracing  the  evolution  of  pop- 
ular government  in  America,  little  that  is  essential  to  the 
subject  could  be  gained  by  an  elaborate  account  of  the 
career  of  parties.  The  leaders  formulate  the  opinion  of 
the  minority  or  of  the  majority,  and  there  is  never  a  time 
when  the  minority  may  not  hope  to  become  the  majority; 
strictly  speaking,  that  is  the  only  excuse  which  the  minor- 
ity has  for  its  existence.  Civil  adjustments,  such  as  are 
recorded,  whether  wisely  or  foolishly,  in  constitutional 
amendments,  are  the  work  of  the  majority,  and  in  a  gov- 
ernment organized  and  conceived  as  is  ours,  there  is  no 
pacific  power  for  securing  such  adjustments  equal  in 
flexibility,  responsiveness,  and  efficiency,  to  the  political 
party.  Thus  it  follows  that  amendments  usually  go 
under  a  party  name,  as  do  the  thirteenth,  fourteenth,  and 
fifteenth  amendments  of  tlie  national  Constitution,  and  as 
usually  is  the  case,  do  amendments  to  the  state  constitu- 
tions. Even  the  organic  law  itself,  when  subject  to  a 
general  revision  in  a  state,  reflects  the  opinions  of  the 
dominant  party,  as  is  exemplified  in  the  later  constitutions 
of  southern  states  which  have  dealt  with  the  suffrage.  But 
in  every  case  the  party  is  the  mere  organ  of  the  majority, 
—  of  that  portion  of  the  people  who  exercise  the  greatest 
influence.  We  come  therefore  to  the  people  and  their 
ideas ;  and  it  is  these  which  exemplify  the  current  phase 
of  government.  That  the  people  are  deluded,  partly  or 
wholly ;  that  unwisdom  for  a  time  prevails ;  that  much 
that  is  done  has  to  be  undone  does  not  invalidate  the 
proposition  that  political  parties  are  agents,  not  principals, 
in  the  evolution  of  government.    Practical  politics  resolves 


THE   UNITED    STATES  339 

the  party  into  a  primal  force,  and  necessarily;  but  the 
silent  forces  which  work  out  social  conditions  operate 
without  respect  for  parties.  It  is  the  first  business  of  a 
political  party  to  identify  itself  with  the  course  of  afifairs ; 
then  it  may  easily  persuade  the  unknowing  that  its  hand 
is  on  the  helm  of  the  ship  of  state. 

There  is  that  about  government  which  appalls  by  its 
mystery.  No  man  has  yet  explained  the  order  of  affairs, 
nor  the  causes  of  conditions,  nor  the  consequences  of 
them.  So  long  as  human  nature  itself  is  unfathomable, 
the  mystery  will  continue ;  only  clearing  away,  here  and 
there,  as  by  common  experience,  after  many  years,  a 
rational  people  come  to  recognize  some  of  the  conditions 
of  peace,  order,  and  the  general  welfare.  Could  we  pierce 
the  darkness,  we  might  be  able  to  anticipate  adjustments 
which,  delayed  too  long,  or  ignorantly  denied,  come  at  last, 
suddenly,  with  the  affliction  of  war.  But,  happily,  we  are 
not  denied  the  hope  that  the  law  of  civil  evolution  but 
rarely  operates  in  so  terrible  a  manner.  Whatsoever  con- 
tributes to  the  common  understanding  of  human  rights, 
seems,  in  the  last  analysis,  the  best  protection  against 
adjustments  which  fail  to  adjust,  and  amendments  which 
fail  to  amend. 

The  century  and  a  quarter  which  elapsed  from  the  first 
enunciation  of  those  civil  principles,  on  which  government 
in  America  is  believed  to  rest,  to  the  acquisition  of  pos- 
sessions beyond  our  original  continental  domain  witnessed 
a  continuous  effort  among  the  American  people  to  elimi- 
nate errors  from  their  formula  of  civil  procedure. 

The  elimination  of  error  from  the  formula  of  civil  pro- 
cedure in  America  constitutes  the  large  task  in  which  its 
composite  population  has  been  engaged  since  the  middle 
of  the  eighteenth  century.  To  what  extent  that  task  has 
been  a  conscious  undertaking  toward  conventional  ends 
is  the  theme  of  every  political  narrative  which  has  been 
written  about  this  country.  If  it  were  possible  so  to  inter- 
pret the  civil  data  as  to  draw  forth  the  meaning  of  our 
organic  and  our  administrative  evolution,  doubtless  we 
might  have  before  us  a  clear  account  of  our  development, 
analogous  to  the  accounts  which  Darwin  and  Wallace 
have  written  of  the  origin  and  development  of  plants  and 
animals. 


340     A    CONSTITUTIONAL   HISTORY   OF 

History  is  not  and  cannot  be  scientific.  "  Method  and 
argument,"  observes  Sir  George  Otto  Trevelyan,  "  are 
the  essential  quahties  necessary  for  the  collection,  colla- 
tion, and  valuation  of  historical  evidence.  So  far  history 
is  a  science.  But  this  method  ends  when  the  task  of 
weighing  the  evidence  for  the  facts  is  complete.  History 
is  not  a  science  in  the  sense  that  it  can  establish  causal 
laws  of  general  application.  All  attempts  have  failed  to 
discover  causal  laws  which  are  certain  to  repeat  them- 
selves in  the  institutions  and  affairs  of  men.  The  law  of 
gravitation  may  be  scientifically  proved.  But  the  histori- 
cal law,  that  starvation  brings  on  revolution,  is  not  proved ; 
indeed,  the  opposite  statement,  that  starvation  brings  on 
abject  slavery,  is  equally  true  in  the  light  of  past 
events."  ^ 

In  other  words,  we  cannot  treat  history  as  a  science 
because  we  cannot  get  all  the  facts.  Tendencies  may  be 
discerned  while  yet  we  possess  only  a  part  of  the  facts ; 
but  our  interpretation  of  this  tendency  or  that  is  liable  to 
error  in  proportion  to  our  ignorance  of  all  the  facts. 
Now,  after  the  lapse  of  nearly  a  century  and  a  half  of 
experience  under  written  constitutions,  —  and  a  consti- 
tution is  only  a  plan,  or  scheme  of  government,  —  we 
detect  tendencies,  as  we  interpret  facts,  that  popular  gov- 
ernment in  America  has  passed  or  is  passing  into  its 
administrative  stage ;  or,  to  express  the  interpretation  in 
dift'erent  words,  we  recognize  in  the  attempt  to  admin- 
ister civil  principles,  that  we  are  dealing  with  problems 
which  did  not  arise,  or  discover  themselves,  while  the 
public  mind  was  consciously  engaged  in  formulating  the 
proper  organization  of  government  imder  its  early  con- 
cept of  the  meaning  of  these  principles. 

An  illustration  will  make  this  statement  clearer.  Jeffer- 
son and  Hamilton  stand  forth  more  conspicuously  than  do 
any  other  men  in  our  history  as  exponents,  the  one  of 
organization,  the  other,  of  administration  of  popular  gov- 
ernment. Jefferson's  writings  abound  in  generalizations 
about  human  rights  ;  Hamilton's,  in  administrative  propo- 
sitions, applying  particular  methods.  Jefferson's  mind 
dwelt  on  the  vague  mass  of  relations  which,  as  the  ages 

^  The  Independent  Review,  December,  1903. 


THE    UNITED    STATES  341 

pass,  men,  under  grinding  necessity,  work  out  and  estab- 
lish as  human  rights.  Hamilton's  mind  moved  swiftly  to 
practical  affairs ;  to  the  application  of  particular  theo- 
rems of  administration ;  and,  necessarily,  to  the  limitation 
of  men  to  fixed  courses  of  conduct.  Jefferson  has  much 
to  say  of  the  evil  of  government ;  Hamilton  is  ever 
warning  against  the  perils  from  anarchy.  Jefferson 
trusted  to  natural  laws  and  the  general  compulsion  of  the 
co-ordinated  mass  of  human  relations ;  Hamilton  dis- 
trusted the  capacity  of  men  to  interpret  their  own  sub- 
stantial interests,  in  government,  and  therefore  devoted 
his  energies  to  formulate  the  proper  procedure  of  that 
care-taker,  —  Government. 

For  more  than  a  hundred  years  the  systems  exemplified 
by  these  two  men  have  been  in  conflict  in  America,  and 
it  may  be  said  that  the  two  systems  have  been  in  conflict 
among  men  since  the  birth  of  civilization.  These  two 
systems  have  been  recognized  under  various  names ;  but 
in  America,  during  the  lifetime  of  Jefferson  and  Hamil- 
ton, they  received  the  names  which,  with  slight  variation, 
they  have  borne  ever  since,  —  democracy  and  federalism. 
Unquestionably  that  great  body  of  citizens  who  adhere  to 
the  teachings  of  Jefferson,  emphasize,  as  did  he,  the  pri- 
mal importance  of  civil  organization,  and  oppose,  gener- 
ally speaking,  attempts  at  interference  with  the  natural 
course  of  affairs.  On  the  other  hand,  that  great  body  of 
citizens  who  adhere  to  the  teachings  of  Hamilton,  em- 
phasize the  supreme  importance  of  administration,  and 
advocate,  generally  speaking,  the  direction  of  the  course 
of  affairs.  This  great  division  of  the  American  people 
is  plainly  apparent  throughout  their  history  as  an  inde- 
pendent nation. 

It  must  be  granted,  after  the  facts  are  duly  weighed, 
that  as  time  passes,  government,  in  America,  changes 
slightly,  if  at  all,  organically,  but  notably,  in  adminis- 
tration. Indeed,  the  supreme  law  of  the  land  differs, 
to-day,  almost  toto  coelo,  from  the  supreme  law  as  formu- 
lated in  1787,  not  in  language  but  in  administrative  inter- 
pretation. The  thirteen  verbal  amendrnents  to  that  law 
are  administrative  rather  than  organic.  "  Economic  neces 
sity  has  interpreted  the  supreme  law,  and  the  interpre 


:A 


342     A    CONSTITUTIONAL   HISTORY    OF 

tation  has  amounted,  all  along,  to  political  opportunism. 
In  other  words,  the  written  constitution  has  been  given 
the  flexibility  of  an  unwritten  constitution.  Whenever 
the  letter  of  the  Constitution  has  stood  in  the  way,  the 
letter  has  been  changed.  And  the  same  experience  has 
befallen  the  people  in  dealing  with  the  local  or  state  con- 
stitutions ;  but  with  these  the  difficulty  has  been  less  than 
with  the  federal  instrument ;  so  much  less,  indeed,  that  no 
fewer  than  one  hundred  and  twenty-five  state  constitu- 
tions have  been  adopted  since  1776,  and  these  have,  in  the 
aggregate,  been  amended  no  fewer  than  five  hundred 
^\  times.  This  facility  in  amendment  goes  far  to  support 
iJefiferson's  estimate  of  a  constitution  that  it  is  of  but 
jlittle  more  importance  than  a  statute  and  can  be  modified 
■almost  at  will. 

)  In  other  words,  Jefferson's  theory  of  government  was 
'that  of  a  very  flexible  organization;  Hamilton's  concept 
was  that  of  a  firmly  established  system  of  checks  and  bal- 
ances, administered  according  to  a  closely  reasoned  body 
of  administrative  regulations.  In  practice,  the  American 
people  have  been  engaged,  since  the  revolution,  in  adapt- 
ing theories  of  administration  to  theories  of  organization. 
We  are  still  engaged  in  this  activity.  The  result  is  that  in 
America  very  few  principles  either  of  organization  or  of 
administration  are  considered  as  final,  fixed,  and  un- 
changeable. A  contingency  may  force  a  new  resolution 
"Either  of  organic  or  of  administrative  elements.  In  war- 
time the  process  seems  to  be  hastened,  but  it  never  ceases 
in  time  of  peace.  This  means  that  the  evolution  of  the 
state  is  a  perpetual  process.  Whether  the  contingency 
arise  out  of  international  or  domestic  relations,  the  con- 
temporary solution  of  the  pressing  problem  is  an  adjust- 
ment. So  the  thirteenth  amendment  to  the  federal 
Constitution  was  an  adjustment;  so  too  was  the  fifteenth 
amendment ;  but  as  time  passes,  the  completeness  of  the 
adjustment,  in  the  case  of  the  fifteenth  amendment,  is  more 
and  more  in  doubt.  The  federal  courts,  to  whom  is 
assigned  the  function  of  final  interpretation  of  the  law 
of  the  land,  interpret  the  fifteenth  amendment,  as  the 
years  pass,  more  and  more  strictly  and  in  conformity  to 
the  precedents  established  prior  to  the  adoption  of  the 


THE    UNITED    STATES  343 

amendment.  That  is,  the  decisions  of  the  federal  courts 
on  the  question  of  negro  suffrage  aHgn  themselves  with 
the  trend  of  all  the  early  decisions,  affecting  the  suffrage, 
that  its  control  rests  with  the  several  states.  Thus  one 
is  forced  to  doubt  that  the  fifteenth  amendment  of  the 
federal  Constitution  will  be  sustained  by  the  generations 
yet  to  come ;  and  the  historian  of  two  thousand  years 
hence  may  write  that  the  government  of  the  people  of 
the  United  States  is  a  white  man's  government,  thus  re- 
verting to  the  practice  of  dominant  races  in  the  western 
world,  down  to  the  close  of  the  civil  war.  This  tendency 
to  reversion  to  an  earlier  type  is  constant  among  plants 
and  animals,  and  may  yet  be  further  exemplified  in  pop- 
ular government. 

The  attitude  of  the  former  slave-holding  states  to  negro 
suffrage  illustrates  the  potency  of  a  general  law  in  na- 
ture, usually  cited  as  that  of  the  survival  of  the  fittest. 
Certainly,  since  1890,  the  application  of  this  general  law 
appears  more  and  more  complete  in  America ;  but  the 
ebb  and  flow  of  civil  affairs  are  as  yet  too  imperfectly 
understood  to  warrant  any  anticipation  of  the  final  de- 
cision in  the  matter  of  the  exercise  of  the  suffrage  by 
the  negro  in  America.  Practically,  all  things  now  point 
to  the  elimination  of  the  negro  from  American  politics ; 
and  if  this  elimination  is  to  become  practically  complete, 
it  means  a  new  adjustment  in  administration.  The  ad- 
ministration of  government  as  to  the  negroes  and  the 
administration  of  municipal  affairs  are  the  two  most 
pressing  problems  in  American  civil  life  at  the  opening 
of  the  twentieth  century.  Yet,  it  may  be  said,  neither  of 
these  was  the  great  problem  in  1776.  Or,  at  least,  neither 
was  recognized  by  the  American  people  as  being  the  great 
problem  of  the  day.  That  they  were  latent  problems  of 
course  goes  without  saying.  The  elaborate  attempt  in  the 
federal  Constitution,  as  it  left  the  hands  of  its  framers,  to 
establish  a  more  perfect  Union,  on  a  representative  basis 
composed  partly  of  slaves  and  partly  of  freemen,  hints 
very  strongly  at  a  recognition  of  the  difficulties  of  the 
immediate  problem ;  but  neither  the  federal  Constitution 
nor  the  early  state  constitutions  give  any  hint  of  the  grav- 
ity of  any  municipal  problem,  and   for  the  reason  that 


344     A    CONSTITUTIONAL    HISTORY    OF 

America  in  the  eighteenth  century  was  rural,  not  urban-, 
in  character.  It  is  in  the  gradual  introduction  of  admin- 
istrative provisions,  into  the  state  constitutions,  that  we 
are  able  to  trace  the  recognition  of  the  municipal  prob- 
lem. Indeed,  this  problem  may  be  said  to  remain  latent 
until  after  1850.  In  that  year  New  York  City  contained 
half  a  million  people ;  Chicago,  thirty  thousand.  The 
phenomenal  growth  of  these  and  other  American  cities 
since  the  civil  war,  until,  at  the  close  of  the  nineteenth 
century,  one-fourth  of  the  population  of  the  country  lived 
in  cities,  indicates  how  swiftly  and  imperiously  the  prob- 
lem of  municipal  government  has  compelled  solution ;  yet, 
if  we  turn  to  the  constitutions  in  force  in  1900,  in  the 
several  states,  we  will  find  only  the  rudimentary  clauses 
on  city  government  which,  prior  to  experience,  we  might 
expect  to  find  in  the  first  constitutions  of  the  preceding 
century.  Here  at  least  there  is  exemplified  what  appears 
to  be  a  general  law.  in  civil  development,  that  American 
experience  in  municipal  government  has  not  accumulated 
sufficiently  to  give  character  to  the  organic  laws  of  the 
country.  Yet  if  we  turn  to  the  body  of  municipal  ordi- 
nances, and  to  the  lesser  body  of  acts  of  legislatures,  per- 
taining to  cities,  we  shall  discover  that  the  problem  of 
municipal  administration  has  for  a  long  time  been  a 
pressing  one  in  America,  —  at  least  for  a  hundred  years, 
—  for  the  early  city  ordinances  date  from  the  opening 
years  of  the  nineteenth  century.  Again,  if  we  turn  to 
the  last  constitutions  adopted  in  states  which  contain 
many  and  large  cities,  we  shall  discover,  as  in  the  New 
York  constitution  of  1894,  an  article  on  municipal  gov- 
ernment, and  here  and  there,  in  other  articles,  clauses 
afifecting  municipal  representation,  taxation,  and  powers.^ 
In  this  constitution  municipal  interests  are  regulated  or 
affected,  in  the  last  resort  by  no  fewer  than  twenty-two 
provisions.  The  first  constitution  of  the  state,  that  of 
1777,  contained  but  one  municipal  regulation,  —  that  de- 
fining an  elector  in  the  city  of  New  York.^ 

1  New  York  constitution,  1894,  Article  XII;  Article  IT,  section  4; 
sections  5,  6;  Article  III,  sections  3,  4,  5,  18,  20,  26,  28;  Article  VI,  sec- 
tions 2,  5,  14,  15;  Article  VII,  section  i  ;  Article  VIII,  sections  10,  li, 
14;  Article  X,  section  2. 

2  Article  VII,  New  York  constitution,  1777. 


THE   UNITED    STATES  345 

It  may  be  said  that  municipal  regulations  distinguish 
the  last  from  tb.e  first  state  constitutions,  and  indicate  the 
administrative  agitation  which  has  gone  along  with  the 
development  of  the  country  socially  and  industrially. 
In  so  far  as  the  government  of  cities  has  entered  into  the 
problem  of  civil  evolution  in  America,  the  changes  finally 
effected  have  been  administrative  rather  than  organic  in 
character.  Municipal  government  in  America  has  fallen 
short  on  the  administrative  rather  than  on  the  organic 
side,  exemplifying,  without  doubt,  the  most  serious  de- 
fect of  the  aggregate  American  system.  There  is  no 
evidence  that  any  of  the  framers  of  the  federal  Constitu- 
tion believed  that  it  would  endure  a  hundred  years.  Sev- 
eral of  them  frankly  declared  while  yet  the  Constitution 
was  a  fragmentary  draft  in  their  hands,  that  they  did  not 
believe  it  would  last  so  long.  Their  opinion,  as  time  has 
proved,  was  well  founded.  The  plan  of  government 
which  they  formulated,  and  which  they  read  into  the 
written  constitution  of  1787,  did  not  continue  a  year 
unchanged.  Ten  amendments  were  made  by  the  15th 
of  June,  1790,  the  ratification  by  Rhode  Island  giving 
them  the  vote  of  the  requisite  nine  states.  The  eleventh 
amendment  went  into  effect  January  8,  1798;  the  twelfth, 
September  25,  1804;  the  thirteenth,  December  18,  1865; 
the  fourteenth,  July  28,  1868,  and  the  fifteenth,  March 
30,  1870.  But  these  verbal  changes  were  as  nothing  to 
the  change  in  the  interpretation  of  the  meaning  of  the 
Constitution.  Long  before  the  death  of  James  Madison, 
in  1836,  that  change  had  come ;  and  not  a  change,  merely, 
nor  here  and  there  a  timid  interpretation  of  a  passage,  but 
a  new  attitude  of  the  American  people  toward  the  whole 
question  of  federal  government.  With  the  expansion  of 
American  wealth  and  influence,  with  the  attrition  of 
political  parties,  with  the  necessary  and  continuous 
efforts  of  the  people  to  adjust  themselves  to  civil  and  in- 
dustrial conditions,  there  came  changes  in  the  interpreta- 
tion of  the  supreme  law ;  and  this  change  is  ever  going 
on.  A  hundred  years  hence  the  federal  Constitution  will 
mean  whatever  the  American  people  choose  to  read  into 
it.  But  their  choice  of  interpretation  is  not  wholly  volun- 
tary;  it  is  shaped  and  determined  by  the  occult  forces  of 


346         A    CONSTITUTIONAL    HISTORY 

human  society,  —  forces  which  as  yet  are  not  measurable 
by  us. 

Is  it  not  best  then  to  conceive  of  popular  government 
in  America  as  subject  to  those  laws  which  affect  human 
institutions  at  all  times  and  among  all  peoples?  We  are 
not  an  exceptional  people ;  ours  is  not  a  unique  destiny. 
In  spite  of  us,  the  evolution  goes  on  and  involves  us  in  its 
processes.  "  Society,"  said  Cavour,  long  ago,  "  is  march- 
ing with  long  strides  toward  democracy.  ...  Is  it  a 
good  ?  Is  it  an  evil  ?  I  know  little  enough ;  but  it  is, 
in  my  opinion,  the  inevitable  future  of  humanity." 


APPENDIX 


THE  CONSTITUTION  OF  THE  UNITED 
STATES  OF  AMERICA.* 

We  the  People  of  the  United  States,  in  Order  to  form  a 
more  perfect  Union,  establish  Justice,  insure  domestic 
TranquilUty,  provide  for  the  common  defence,  promote 
the  general  Welfare,  and  secure  the  Blessings  of  Lib- 
erty to  ourselves  and  our  Posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America. 

Chisholm  v.  Georgia,  2  Dall  ,  .119  •  McCulloch  v.  State  of  Maryland 
et  al.,  4  Wh.,  316;  Bro-^n  et  als.  z/.  Maryland,  12  Wh.,  419;  Barron  v. 
The  Mayor  and  City  CouncU  of  Baltimore,  7  Pet.,  243;  Lane  County 
V.  Oregon,  7  Wall.,  71  ;  Texas  v.  White  et  al.,  7  Wall.,  700. 

ARTICLE    I. 

Section  l.  AH  legislative  Powers  herein  granted 
shall  be  ves^ted  in  a  Congress  of  the  United  States,  which 
■fchall  consist  of  a  Senate  and  House  of  Representatives. 

Hayburn's  Case  (notes),  2  Dall.,  409. 

Section  2.  ^  The  House  of  Representatives  shall  be- 
composed  of  Members  chosen  every  second  Year  by  the 
People  of  the  several  States  and  the  Electors  in  each  State 

*  The  original  draft  of  the  Constitution,  engrossed  on  five  sheets  of 
f)archment  and  signed  by  the  framers,  is  preserved  in  the  Department 
of  State,  Washington,  in  a  fireproof  safe.  It  is  in  the  custody  of  the 
Librarian  and  Keeper  of  the  Rolls.  A  facsimile,  somewhat  reduced,  is 
given  in  Carson's,  lootk  Anniversary  of  the  Constitution  of  the  United 
States,  vol.  i. 


348  APPENDIX 

shall  have  the  Qualifications  requisite  for  Electors  of  the 
most  numerous  Branch  of  the  State  Legislature. 

In  re  Green,  134  U.  S.,  377. 

^No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty-five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  Inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

^  *  [Representatives  and  direct  Taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  Numbers, 
which  shall  be  determined  by  adding  to  the  whole  Num- 
ber of  free  Persons,  including  those  bound  to  Service  for 
a  Term  of  Years,  and  excluding  Indians  not  taxed,  three 
fifths  of  all  other  Persons.]  The  actual  Enumeration  shall 
be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent Term  of  ten  Years,  in  such  Manner  as  they  shall 
by  Law  direct.  The  Number  of  Representatives  shall  not 
exceed  one  for  every  thirty  Thousand,  but  each  State  shall 
have  at  Least  one  Representative ;  and  until  such  enumer- 
ation shall  be  made,  the  State  of  New  Hampshire  shall  be 
entitled  to  chuse  three,  Massachusetts  eight,  Rhode-Island 
and  Providence  Plantations  one,  Connecticut  five,  New- 
York  six.  New  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten.  North  Carolina  five, 
South  Carolina  five,  and  Georgia  three. 

Veazie  Bank  v.  Fenno,  8  Wall.,  533;  Scholey  v.  Rew,  23  Wall.,  331 ; 
Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429. 

*When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies. 

''The  House  of  Representatives  shall  chuse  their 
Speaker  and  other  Oflficers ;  and  shall  have  the  sole 
Power  of  Impeachment. 

Section  3.  ^  The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen  by 

*  The  clause   included   in   brackets   is  amended  by  the   fourteenth 

amendment,  second  section. 


THE   CONSTITUTION  349 

the  Legislature  thereof,  for  six  Years ;  and  each  Senator 
shall  have  one  Vote. 

2  Immediately  after  they  shall  be  assembled  in  Conse- 
quence of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  Classes.  The  Seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the  Expira- 
tion of  the  second  Year,  of  the  second  Class  at  the  Ex[>i- 
ration  of  the  fourth  Year,  and  of  the  third  Class  at  the 
Expiration  of  the  sixth  Year,  so  that  one-third  may  be 
chosen  every  second  Year;  and  if  Vacancies  happen  by 
Resignation,  or  otherwise,  during  the  Recess  of  the  Leg- 
islature of  any  State,  the  Executive  thereof  may  make 
temporary  Appointments  until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such  Vacancies. 

^No  Person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  Age  of  thirty  Years,  and  been  nine  Years 
a  Citizen  of  the"  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

*The  Vice  President  of  the  United  States  shall  be  Pres- 
ident of  the  Senate,  but  shall  have  no  Vote,  unless  they 
be  equally  divided. 

^The  Senate  shall  chuse  their  other  Officers,  and  also 
a  President  pro  tempore,  in  the  absence  of  the  Vice  Presi- 
dent, or  when  he  shall  exercise  the  Office  of  President  of 
the  United  States. 

^The  Senate  shall  have  the  sole  Power  to  try  all  Im- 
peachments. When  sitting  for  that  Purpose,  they  shall 
be  on  Oath  or  Affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside: 
And  no  Person  shall  be  convicted  without  the  Concurrence 
of  two  thirds  of  the  Members  present. 

''Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification 
to  hold  and  enjoy  any  Office  of  honor,  Trust  or  Profit 
under  the  United  States:  but  the  Party  convicted  shall 
nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law. 

Section  4.  ^  The  Times,  Places  and  Manner  of  hold- 
ing Elections  for  Senators  and  Representatives,  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof;   but 


350  APPENDIX 

the  Congress  may  at  any  time  by  Law  make  or  alter  such 
Regulations,  except  as  to  the  Places  of  chusing  Senators. 

Ex  parte  Siebold,  loo  U.  S.,  371 ;  Ex  parte  Yarborough,  no  U.  S.,  651. 

^The  Congress  shall  assemble  at  least  once  in  every 
Year,  and  such  Meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  Law  appoint  a  different 
Day. 

Section  5.  ^  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a  Majority  of  each  shall  constitute  a  Quorum 
to  do  Business ;  but  a  smaller  Number  may  adjourn  from 
day  to  day,  and  may  be  authorized  to  compel  the  Attend- 
ance of  absent  Members,  in  such  Manner,  and  under  such 
Penalties  as  each  House  may  provide. 

In  re  Loney,  134  U.  S.,  372. 

^Each  House  may  determine  the  Rules  of  its  Proceed- 
ings, punish  its  Members  for  disorderly  Behavior,  and, 
with  the  Concurrence  of  two  thirds,  expel  a  Member. 

Anderson  v.  Dunn,  6  Wh.,  204;  Kilbourn  v.  Thompson,  103  U.  S., 
168;  U.  S.  V.  Bollin,  144  U.  S.,  i. 

^Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment  require  Secrecy ;  and 
the  Yeas  and  Nays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those 
Present,  be  entered  on  the  Journal. 

^Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  Place  than  that  in  which  the 
two  Houses  shall  be  sitting. 

Section  6.  ^  The  Senators  and  Representatives  shall 
receive  a  Compensation  for  their  Services,  to  be  ascer- 
tained by  Law,  and  paid  out  of  the  Treasury  of  the  United 
States.  They  shall  in  all  Cases,  except  Treason,  Felony 
and  Breach  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same ;  and  for 
any  Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

Coxe  I'.  M'Clenachan,  3  Dall.,  478. 


THE    CONSTITUTION  351 

^No  Senator  or  Representative  shall,  during  the  Time 
for  which  he  was  elected,  be  appointed  to  any  civil  Ofifice 
under  the  Authority  of  the  United  States,  which  shall 
have  been  created,  or  the  Emoluments  whereof  shall  have 
been  encreased  during  such  time ;  and  no  Person  holding 
any  Office  under  the  United  States,  shall  be  a  Member 
of  either  House  during  his  Continuance  in  Office. 

Section  7.  ^  All  Bills  for  raising  Revenue  shall  origi- 
nate in  the  House  of  Representatives  ;  but  the  Senate  may 
propose  or  concur  with  Amendments  as  on  other  Bills. 

^  Every  Bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate,  shall,  before  it  become  a 
Law,  be  presented  to  the  President  of  the  United  States; 
If  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  Objections  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Reconsideration  two  thirds  of  that  House  shall  agree  to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections, 
to  the  other  House,  by  which  it  shall  likewise  be  recon- 
sidered, and  if  approved  by  two  thirds  of  that  House,  it 
shall  become  a  Law.  But  in  all  such  Cases  the  Votes  of 
both  Houses  shall  be  determined  by  yeas  and  Nays,  and 
the  Names  of  the  Persons  voting  for  and  against  the  Bill 
shall  be  entered  on  the  Journal  of  each  House  respectively. 
If  any  Bill  shall  not  be  returned  by  the  President  within 
ten  Days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a  Law,  in  like  Manner 
as  if  he  had  signed  it,  unless  the  Congress  by  their  Ad- 
journment prevent  its  Return,  in  which  Case  it  shall  not 
be  a  Law. 

^  Every  Order,  Resolution,  or  Vote  to  which  the  Con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  Adjournment) 
shall  be  presented  to  the  President  of  the  United  States ; 
and  before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  Rules  and  Limitations  prescribed  in  the 
Case  of  a  Bill. 

Section  8.    The  Congress  shall  have  Power  ^To  lay 


352  APPENDIX 

and  collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay 
the  Debts  and  provide  for  the  common  Defence  and  gen- 
eral Welfare  of  the  United  States ;  but  all  Duties,  Im- 
posts and  Excises  shall  be  uniform  throughout  the  United 
States ; 

Hylton  V.  United  States,  3  Dall.,  171  ;  McCulloch  v.  State  of  Mary- 
land, 4  Wh.,  316  ;  Loughborough  v.  lilake,  5  Wh.,  317;  Osborn  v.  Bank 
of  United  States,  9  Wh.,  73S  ;  Weston  et  al.  v.  City  Council  of  Charles- 
ton, 2  Pet.,  449;  Dobbins  z^.  The  Commissioners  of  Erie  County,  16  Pet., 
435;  License  C'ases,  5  How.,  504;  Cooley  v.  lioard  of  Wardens  of  Port 
of  Philadelphia  et  al.,  12  How.,  299;  McGuire  v.  The  Commonwealth,  3 
Wall.,  387;  Van  Allen  v.  The  Assessors,  3  Wall.,  573;  Bradley  v.  The 
People,  4  Wall,  459. 

License  Tax  Cases,  5  Wall.,  462;  Pervear  v.  The  Commonwealth,  5 
Wall.,  475;  Woodruff  v.  Parham,  8  Wall.,  123;  llinson  v.  Lott,  8  Wall., 
148;  Veazie  Bank  v.  Fenno,  8  Wall.,  533;  The  Collector  v.  Day,  11 
Wall.,  113;  United  States  v.  Singer,  15  Wall.,  iii;  State  Tax  on  Yox- 
eign-held  Bonds,  15  Wall.,  300;  United  States  z/.  Railroad  Company,  17 
Wall.,  322;  Railroad  Company  v.  Peniston,  18  Wall.,  5;  Scholey  v. 
Rew,  23  Wall.,  331;  Springer  v.  United  States,  102  U.  S.,  586;  Legal 
Tender  Case,  no  U.  S.,  421  ;  California  v.  Central  Pacific  Railroad  Co., 
127  U.  S.,  i;  Ratterman  v.  Western  Union  Telegraph  Co.,  127  U.  S., 
411;  Leloup  V.  Port  of  Mobile,  127  U.  S.,  640;  P'ield  v.  Clark,  143 
U.  S.,  649;  Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429. 

2 To  borrow  Money  on  the  credit  of  the  United  States; 

McCullough  V.  The  State  of  Maryland,  4  Wh.,  316;  Weston  et  al.  v. 
The  City  Council  of  Charleston,  2  Pet.,  449;  Bank  of  Commerce  v.  New 
York  City,  2  Black,  620;  Bank  Tax  Cases,  2  Wall.,  200;  The  Banks  v. 
The  Mayor,  7  Wall.,  16;  Bank  v.  Supervisors,  7  Wall.,  26;  Hepburn 
V.  Griswold,  8  Wall.,  603;  National  Bank  v.  Commonwealth,  9  Wall., 
353;  Parker  v.  Davis,  12  Wall.,  457  ;  Legal  Tender  Case,  no  U.  S.,  421. 

^To  regulate  Commerce  with  foreign  Nations,  and 
among  the  several  States,  and  with  the  Indian  Tribes ; 

Gibbons  v.  Ogden,  9  Wh.,  i  ;  Brown  et  als.  v.  State  of  Maryland,  12 
Wh.,  419;  Wilson  et  al.  ta  Black  Bird  Creek  Marsh  Company,  2  Pet., 
245  ;  Worcester  v.  The  State  of  Georgia,  6  Pet.,  515  ;  City  of  New  York 
V.  Miln,  II  Pet.,  102;  United  States  v.  Coombs,  12  Pet.,  72  ;  Holmes  v. 
Jennison  et  al.,  14  Pet.,  540;  License  Cases,  5  How.,  504;  Passenger 
Cases,  7  How.,  2S3 ;  Nathan  v.  Louisiana,  8  How.,  -jt^;  Mager  ?'.  Grima 
et  al.,  8  How.,  490  ;  United  States  -j.  Marigold,  9  How.,  560  ;  Cowley  v. 
Board  of  Wardens  of  Port  of  Philadelphia,  12  How.,  299;  The  Propeller 
Genesee  Chief  et  al.  v.  Fitzhugh  et  al.,  12  How.,  443;  State  of  Pennsyl- 
vania V.  The  Wheeling  Bridge  Co.,  13  How.,  518;  Veazie  et  al.  v. 
Moore,  14  How.,  568;  Smith  -'.  State  of  Maryland,  18  How.,  71  ;  State 
of  Pennsylvania  v.  The  Wheeling  and  Belmont  Bridge  Co.  et  al.,  i8 
How.,  421  ;  Sinnitt  v.  Davenport,  22  How.,  227  ;  Foster  et  al.  ■:;'.  Daven- 
port et  al.,  22  How.,  244;  Conway  et  al.  v.  Taylor's  Ex.,  i  Black,  603; 
United    States  v.   Holliday,  3    Wall.,  407  ;    Gilman   v.    Philadelphia,  3 


THE   CONSTITUTION  353 

Wall.,  713;  The  Passaic  Bridges,  3  Wall.,  782  ;  Steamship  Company  w. 
Port  Wardens,  6  Wall.,  31  ;  Crandall  v.  State  of  Nevada,  6  Wall.,  35 ; 
"White's  Bank  v.  Smith,  7  Wall.,  646;  Waring  v.  The  Mayor,  8  Wall., 
no;  Paul  V.  Virginia,  8  Wall.,  16S  ;  Thomson  v.  Pacific  Railroad,  9 
Wall.,  579;  Downham  et  al.  c.  Alexandria  Council,  10  Wall.,  173;  The 
Clinton  Bridge,  10  Wall.,  454;  The  Daniel  Ball,  10  Wall.,  557;  Liver- 
pool Insurance  Company  z-.  Massachusetts,  10  Wall.,  566;  The  Mon- 
tello,  II  Wall.,  411;  Ex  parte  McNiel,  13  Wall,  236;  State  Freight  Tax, 
15  Wall.,  232;  State  Tax  on  Railway  Gross  Receipts,  15  Wall.,  284; 
Osborn  v.  Mobile,  16  Wall.,  479;  Railroad  Company  v.  Fuller,  17 
Wall.,  560;  Bartemever  57.  Iowa,  18  Wall.,  129;  The  Delaware  Railroad 
Tax,  18  Wall.,  206;  Peete  v.  Morgan,  19  Wall.,  581  ;  Railroad  Company 
V.  Richmond,  19  Wall.,  584;  B.  and  O.  Railroad  Company  v.  Maryland, 
21  Wall.,  456;  The  Lottawanna,  21  Wall.,  558;  Henderson  et  al.  v.  The 
Mayor  of  the  City  of  New  York,  92  U.  S.,  259;  Chy  Lung  v.  Freeman 
et  al.,  92  U.  S.,  275  ;  South  Carolina  v.  Georgia  et  al,  93  U.  S.,  4  ;  Sher- 
lock et  al.  V.  Ailing,  adm.,  93  U.  S.,  99;  United  States  v.  Forty-three 
Gallons  of  Whisky,  etc.,  93  U.  S.,  188;  Fosterer.  Master  and  Wardens 
of  the  Port  of  New  Orleans,  94  U.  S.,  246;  Railroad  Co.  z\  Husen,  95 
U.  S.,  465;  Pensacola  Tel  Co.  v.  W.  U.  Tel.  Co.,  96  U.  S.,  i  ;  Beer  Co. 
V.  Massachusetts,  97  U.  S.,  25;  Cook  v.  Pennsylvania,  97  U.  S.,  566; 
Packet  Co.  v.  St.  Louis,  100  U.  S.,  433;  Wilson  v.  McNamee,  102 
U.  S.,  572;  Moran  v.  New  Orleans,  112  U.  S.,  69;  Head  Money  Cases, 
112  U.  S.,  580;  Cooper  Mfg.  Co.  v.  Ferguson,  X13  U.  S.,  727;  Glouces- 
ter Ferry  Co.  v.  Pennsylvania,  114  U.  S.,  196;  Brown  v.  Houston,  114 
U.  S.  622;  Walling  v.  Michigan,  116  U.  S.,  446;  Pickard  v.  Pullman, 
Southern  Car  Co.,  117  U.  S.,  34;  Tennessee  v.  Pullman  Southern  Car 
Co.,  117  U.  S.,  51;  Spraigue  v.  Thompson,  118  U.  S.,  90;  Morgan  v. 
Louisiana,  118  U.  S.,  455;  Wabash,  St.  Louis  and  Pacific  Ry.  v.  Illi- 
nois, 118  U.  S.,  557;  Huse  V.  Glover,  119  U.  S.,  543;  Robbins  v.  Shelby 
Co.  Taxing  Dist.,  120  U.  S.,  489;  Corson  v.  Maryland,  120  U.  S.,  502; 
Barron  v.  Burnside,  I2X  U.  S.,  186;  Fargo  v.  Michigan,  121  U.  S., 
230;  Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444;  Phila.  and 
Southern  S.  S.  Co.  v.  Penna.,  122  U.  S.,  326;  W.  U.  Tel.  Co.  v.  Pendle- 
ton, 122  U.  S.,  347;  Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S., 
288;  Smith  V.  Alabama,  124  U,  S.  465;  Willamette  Iron  Bridge  Co., 
V.  Hatch,  125  U.  S.,  I  ;  Pembina  Mine  Co.  v.  Penna.,  125  U.  S.,  iSi  ; 
Bowman  v.  Chicago  Northwestern  Rwy.  Co.,  125  U.  S.,  465;  Western 
Union  Tel.  Co.  v.  Mass.,  125  U.  S.,  530;  California  v.  Central  Pacific 
R.  R.  Co.,  127  U.  S.,  I  ;  Leloup  v.  Port  of  Mobile,  127  U.  S.,  640;  Kidd 
V.  Pearson,  128  U.  S.,  i  ;  Asher  v.  Texas,  128  U.  S.,  129;  Stoutenberg  v. 
Hennick,  129  U.S.,  141  ;  Western  Union  Tel.  Co.  v.  Alabama,  132  U.  S., 
472  ;  Fritts  v.  Palmer,  132  U.  S.,  282  ;  Louisville,  N.  O.,  &c..  Railway  v. 
Mississippi,  13-,  U.  S.,  587;  Leisy  v.  Hardin,  135  U.  S.,  100;  Lyng  v. 
Michigan,  13s  U.  S.,  161  ;  Cherokee  Nation  v.  Kansas  Railway  Co.,  135 
U.  S.,  641  ;  McCall  v.  California,  136  U.  S.,  104;  Norfolk  &  Western 
R.  Rd.  V.  Pennsylvania,  136  U.  S.,  114;  Minnesota  v.  Barber,  13S  U.  S  , 
313;  Texas  &  Pacific  Ry.  Co.  v.  Southern  Pacific  Co.,  137  U.  S.,  48; 
Brimmer  v.  Rebman,  138  U.  S.,  78;  Manchester  v.  Mass.,  139  U.  S.,  240; 
In  re  Rahrer,  140  U.  S.,  545;  Pullman  Palace  Car  Co.  v.  Penna.,  141 
U.  S.,  18;  Pullman  Palace  Car  Co.  v.  Hayward,  14!  U.  S.,  36;  Ma.ss.  v. 
West'n  Union  Tel.  Co.,  141  U.  S.,  40;  Crutcher  v.  Kentucky,  141  U.  S., 
47;  Henderson  Bridge  Co.  v.  Henderson,  141  U.  S.,  679;  In  re  Garnett, 
141  U.  S.,  I ;  Maine  v.  Grand  Trunk  Ry.  Co.,  142  U.  S.,  217  ;  Mishimura 

23 


354  APPENDIX 

Ekin  V.  U.  S.,  142  U.  S.,  651  ;  Pacific  Ex.  Co.  v.  Seibert,  142  U.  S.,  339; 
Horn  Silver  Mining  Co.  v.  New  York,  143  U.  S.,  305  ;  Chic.  &  Grand 
Trunk  Ry.  Co.  v.  Wellman,  143  U.  S.,  339;  Budd  v.  N.  Y.,  143  U.  S., 
517  ;  Ficklen  v.  Shelby  Co.  Taxing  Dist.,  145  U.  S.,  i  ;  Lehigh  Valley 
R.  Rd.  V.  Pennsylvania,  145  U.  S.,  192  ;  Interstate  Commerce  Comm'n  v. 
B.  &  O.  R.  Rd.,  145  U.  S.,  264;  Brennan  v.  Titusville,  153  U.  S.,  289; 
Brass  v.  Stoeser,  153  U.  S.,391  ;  Ashley  v.  Ryan,  153  U.  S.,  436 ;  Liixton 
V.  N.  River  Bridge  Co.,  153  U.  S.,  529;  Erie  R.  Rd.  z/.  Penna.,  153  U.  S., 
62S ;  Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.,  692;  Covington  & 
Cinc'ti  Bridge  Co.?/.  Ky.,  154  U.  S.,  204;  Plumley  v.  Mass.,  155  U.  S., 
461  ;  Texas  &  Pacific  Rwy.  Co.  v.  Interstate  Transfer  Co.,  155  U.  S., 
585;  Hooper  z/.  Calif.,  155  U.  S.,  648;  Postal  Tel.  Cable  Co.  v.  Adams, 
155  U.  S.,  688;  U.  S.  v.  E.  C.  Knight  &  Co.,  156  U.  S.,  i  ;  Ernest  v. 
Missouri,  156  U.  S.,  296;  N.  Y.,  L.  E.  &  West'n  v.  Penna..  158  U.  S., 
431  ;  Pittsburgh  &  So.  Coal  Co.  v.  I]ates,  156  U.  S.,  577  ;  Pittsburgh  & 
So.  Coal  Co.  V.  La.,  156  U.  S.,  590;  Gulf,  Colo.  &  S.  F.  Rwy.  Co.  v. 
Hefley,  158  U.  S.,  98;  In  re  Debs,  158  U.  S.,  564. 

^To  establish  an  uniform  Rule  of  Naturalization,^  and 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States ;  ^ 

^Sturges  V.  Crowninshield,  4  Wh.,  122  ;  2  McMillan  v.  McNeil,  4  Wh., 
209;  2  Farmers  and  Mechanics'  Bank,  Pennsylvania,  7'.  Smith,  6  Wh., 
131  ;  ^Ogden  v.  Saunders,  12  Wh.,  213;  "-Boyle  v.  Zacharie  and  Turner, 
6  Pet.,  348;  iGassies  v.  Ballon,  6  Pet.,  761  ;  ^  Beers  et  al.  v.  Haughton, 
9  Pet.,  329;  ^Suydam  et  al.  v.  Broadnax,  14  Pet.,  67  ;  -Cook  v.  Moffat 
et  al,  5  How.,  295;  ^Dred  Scott  v.  Sanford,  19  How.,  393. 

^To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures ; 

Briscoe  v.  The  Bank  of  the  Commonwealth  of  Kentucky,  it  Pet.,  257  ; 
Fox  V.  The  State  of  Ohio,  5  How.,  410;  United  States  v.  Marigold,  9 
How.,  560. 

^To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States ; 

Fox  z'.  The  State  of  Ohio,  5  How.,  410;  United  States  v.  Marigold, 
9  How.,  560. 

'To  establish  Post  Offices  and  post  Roads; 

State  of  Pennsylvania  v.  The  Wheeling  and  Belmont  Bridge  Com- 
pany, 18  How.,  421  ;  Homer  v.  U.  S  ,  143  U.  S.,  207  ;  In  re  Rapier,  143 
U.  S.,  no;  In  re  Debs,  158  U.  S.,  564. 

^To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors 


THE   CONSTITUTION  355 

the    exclusive    Right   to   their    respective    Writings    and 
Discoveries ; 

Grant  et  al.  z/.  Raymond,  6  Pet.,  218;  Wheaton  et  als.  z/.  Peters,  et 
als.,  8  Pet.,  591. 

»To  constitute  Tribunals  inferior  to  the  supreme  Court; 

^°To  define  and  punish  Piracies  and  Felonies  committed 
on  the  high  Seas,  and  Offenses  against  the  Law  of 
Nations ; 

United  States  v.  Palmer,  3  Wh.,  610 ;  United  States  v.  Wiltberger,  5 
Wh.,  76;  United  States  v.  Smith,  5  Wh.,  153;  United  States  v.  Pirates, 
5  Wh.,  184;   United  States  z'.  Arizona,  120  U.  S.,  479. 

"To  declare  War,  grant  Letters  of  Marque  and  Re- 
prisal, and  make  Rules  concerning  Captures  on  Land  and 
Water ; 

Brown  z/.  United  States,  8  Cr.,  no;  American  Insurance  Company  et 
al.  V.  Canter  (356  bales  cotton),  i  Pet.,  511  ;  Mrs.  Alexander's  Cotton,  2 
Wall.,  404;  Miller  v.  United  States,  11  Wall,  268;  Tyler  v.  Defrees, 
II  Wall.,  331;  Stewart  v.  Kahn,  11  Wall.,  493;  Hamilton  v.  Dillin,  21 
Wall.,  73;  Lamar,  ex.,  v.  Browne  et  al.,  92  U.  S.,  187. 

^2 To  raise  and  support  Armies,  but  no  Appropriation 
of  Money  to  that  Use  shall  be  for  a  longer  Term  than  two 
Years ; 

Crandall  v.  State  of  Nevada,  6  Wall,  32. 

^^To  provide  and  maintain  a  Navy; 

United  States  v.  Bevans,  3  Wh.,  336;  Dynes  v.  Hoover,  20  How.,  65. 

"To  make  Rules  for  the  Government  and  Regulation 
of  the  land  and  naval  Forces ; 

^^To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel 
Invasions ; 

Houston  V.  Moore,  5  Wh.,  i  ;  Martin  v.  Mott,  12  Wh.,  19;  Luther  z/. 
Borden,  7  How.,  i  ;  Crandall  v.  State  of  Nevada,  6  Wall.,  35;  Texas 
V.  White,  7  Wall.,  700. 

"To  provide  for  organizing,  arming,  and  disciphning 
the  Militia,  and  for  governing  such  Part  of  them  as  may 
be  employed  in  the  Service  of  the  United  States,  reserving 
to  the  States  respectively,  the  Appointment  of  the  Officers^ 


356  APPENDIX 

and  the  Authority  of  training  the  Militia  according  to  the 
discipline  prescribed  by  Congress ; 

Houston  V.  Moore,  5  Wh.,  i ;  Martin  v.  Mott,  12  \Vh.,  19;  Luther  v. 
Borden,  7  How.,  i. 

^^To  exercise  exclusive  Legislation  in  all  Cases  what- 
soever, over  such  District  (not  exceeding  ten  Miles  square) 
as  may,  by  Cession  of  particular  States,  and  the  Accept- 
ance of  Congress,  become  the  Seat  of  the  Government  of 
the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of 
the  State  in  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock- Yards,  and  other  need- 
ful Buildings;  —  And 

Hepburn  et  al.  v.  Ellzey,  2  Cr.,  444;  Loughborough  v.  Blake,  5  Wh., 
317  ;  Cohens  v.  Virginia,  6  Wh.,  264 ;  American  Insurance  Company  v. 
Canter  (356  bales  cotton),  i  Pet,  511;  Kendall,  Postmaster-General  v. 
The  United  States,  12  Pet.,  524;  United  States  v.  Dewitt,  9  Wall.,  41  ; 
Dunphy  v.  Kleinsmith  et  al.,  11  Wall.,  610;  Willard  v.  Presbury,  14 
Wall.,  676;  Phillips  v.  Payne,  92  U.  S.,  130;  United  States  v.  Fox,  94 
U.  S.,  315;  National  Bank  v.  Yankton  County,  loi  U.  S.,  129;  Ft. 
Leavenworth  R.  Rd.  Co.  v.  Howe,  114  U.  S.,  525;  Benson  v.  U.  S.,  146 
U.  S.,  325;  Shoemaker  v.  U.  S.,  147  U.  S.,  2S2. 

"To  make  all  Laws  which  shall  be  necessary  and 
proper  for  carrying  into  Execution  the  foregoing  Powers, 
and  all  other  Powers  vested  by  this  Constitution  in  the 
Government  of  the  United  States,  or  in  any  Department 
or  Officer  thereof. 

McCulloch  V.  The  State  of  Maryland,  4  Wh.,  316;  Wayman  v. 
Southard,  10  Wh.,  i  ;  Bank  of  United  States  v.  Halstead,  10  Wh.,  51  ; 
Hepburn  v.  Griswold,  8  Wall.,  603  ;  National  Bank  v.  Commonwealth,  9 
Wall.,  353  ;  Thomson  v.  Pacific  Railroad,  9  Wall ,  579  ;  Parker  z.  Davis, 
12  Wall.,  457;  Railroad  Company  t'.  Johnson,  15  Wall.,  195;  Railroad 
Company  z/!  Peniston,  18  Wall.,  5;  Legal  Tender  Case,  no  U.  S.,  421; 
In  re  Coy,  127  U.  S.,  731  ;  Stoutenburgh  v.  Hennick,  129  U.  S.,  141  ; 
Chinese  Ex.  Case,  130  U.  S.,  581  ;  In  re  Neagle,  135  U.  S.,  i  ;  St.  Paul, 
Minneapolis  &  Manitoba  Ry.  Co.  v.  Phelps,  137  U.  S.,  528;  Homer  v. 
U.  S.,  143  U.  S.,  570;  Logan  v.  U.  S.,  144  U.  S.,  263;  Fong-Yue  Ting 
V.  U.  S.,  149  U.  S.,  698;  Lees  v.  U.  S..  150  U.  S.,  476;  Lu.xton  v.  North 
River  Bridge  Co.,  153  U.  S.,  529;  Erie  R.  Rd.  v.  Penna.,  153  U.  S..  628; 
Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.,  692;  Clune  v.  U.  S.,  159 
U.  S.,  590. 

Sfxtion  9.  ^The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 


THE   CONSTITUTION  357 

prior  to  the  Year  one  thousand  eig-ht  hundred  and  eight, 
but  a  Tax  or  duty  may  be  imposed  on  such  Importation, 
not  exceeding  ten  dollars  for  each  Person. 

Dred  Scott  v.  Sanford,  19  How.,  393. 

-The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not 
be  suspended,  unless  when  in  Cases  of  Rebellion  or  Inva- 
sion the  public  Safety  may  require  it. 

United  States  v.  Hamilton,  3  Dall.,  17  ;  Hepburn  et  al.  v.  Ellzey,  2 
Cr.,  445;  Ex  parte  Bollman  and  Swartwout,  4  Cr.,  75;  Ex  parte  Kearney 
7  \Vh.,  38;  Ex  parte  Tobias  Watkins,  3  Pet.,  192;  Ex  parte  Milburn,  9 
Pet.,  704;  Holmes  v.  Jennison  et  al.,  14  Pet.,  540;  Ex  parte  Dorr,  3 
How.,  103;  Luther  v.  Borden,  7  How.,  i  ;  Ableman  v.  Booth  and  United 
States  V.  Booth,  21  How.,  506;  Ex  parte  yallinclji;j>am,  i  Wall.,  243; 
Ex  parte  Mulligan,  4  Wall.,  2;  iix  parte  McC:arcrier7~Wall.,  506;  Ex 
parte  Yerger,8  Wall.,  85  ;  Tarble's  Case,  13  Wall.,  397  ;  Ex  parte  Lange, 
18  Wall.,  16;  Ex  parte  Parks,  93  U.  S.,  18;  Ex  parte  Karstendick,  93 
U.  S.,  396;  Ex  parte  Virginia,  100  U.  S.,  339;  In  re  Neagle,  135  U.  S., 
1 ;  In  re  Duncan,  139  U.  S.,  449. 

^No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed. 

Fletcher  v.  Peck,  6  Cr.,  87;  Ogden  v.  Saunders,  12  Wh.,213;  W^atson 
et  al.  V.  Mercer,  8  Pet.,  88;  Carpenter  et  al.  v.  Commonwealth  of  Penn- 
sylvania, 17  How.,  456;  Locke  v.  New  Orleans,  4  Wall.,  172  ;  Cummings 
V.  The  State  of  Missouri,  4  W^all,  277  ;  Ex  parte  Garland,  4  Wall.,  333; 
Drehman  v.  Stifle,  8  Wall.,  595;  KHnger  v.  State  of  Missouri,  13  Wall., 
257;  Pierce  w.  Carskadon,  16  Wall.,  234;  Holden  v.  Minnesota,  137 
U.  S.,  483;  Cook  V.  U.  S.,  138  U.  S.,  157. 

*No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless 
in  Proportion  to  the  Census  or  Enumeration  herein  before 
directed  to  be  taken. 

License  Tax  Cases,  5  Wall.,  462  ;  Springer  v.  United  States,  102 
U.  S.,  5S6;  Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429. 

^No  Tax  or  Duty  shall  be  laid  on  Articles  exported 
from  any  State. 

Cooiey  V.  Board  of  Wardens  of  Port  of  Philadelphia,  12  How.,  299; 
Page  V.  Burgess,  collector,  92  U.  S.,  372;  Turpin  v.  Burgess,  117  U.  S., 
504;  Pittsburgh  &  Southern  Coal  Co.  v.  Bates,  156  U.  S.,  577. 

°No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State  over  those 
of  another:  nor  shall  Vessels  bound  to,  or  from,  one 
State,  be  obliged  to  enter,  clear,  or  pay  Duties  in  another. 

Cooiey  V.  Board  of  Wardens  of  Port  of  Philadelphia  et  al.,  12  How., 
299;  State  of  Pennsylvania  z/.  Wheeling  and  Belmont  Bridge  Company 


358  APPENDIX 

et  al.,  iS  How.,  421  ;  Munn  v.  Illinois,  94  U.  S.,  113;  Packet  Co.  v.  St. 
l.ouis,  100  U.  S.,  413;  Packet  Co.  v.  Catlettsburg,  105  U.  S.,  559; 
Morgan  S.  S.  Co.  v.  La.  Board  of  Health,  118  U.  S.,  455. 

'^No  Money  shall  be  drawn  from  the  Treasury,  but  in 
Consequence  of  Appropriations  made  by  Law ;  and  a 
regular  Statement  and  Account  of  the  Receipts  and  Ex- 
penditures of  all  public  Money  shall  be  published  from 
time  to  time. 

*No  Title  of  Nobility  shall  be  granted  by  the  United 
States :  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the  Con- 
gress, accept  of  any  present,  Emolument,  Office,  or  Title, 
of  any  kind  whatever,  from  any  King,  Prince,  or  foreign 
State. 

Section  io.  ^No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation ;  grant  Letters  of  Marque  and 
Reprisal ;  coin  Money  ;  emit  Bills  of  Credit ;  ^  make  any 
Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of 
Debts ;  pass  any  Bill  of  Attainder,  ex  post  facto  Law,^ 
or  Law  impairing  the  Obligation  of  Contracts,^  or  grant 
any  Title  of  Nobility. 

2Calder  and  Wife  v.  Bull  and  Wife,  3  Ball.,  386;  3  Fletcher  v.  Peck, 
6  Cr.,  87;  2  State  of  New  Jersey  v.  Wilson,  7  Cr.,  164;  i^Sturgis  v. 
Crowninsliield,  4  Wh,,  122;  ^ McMillan  v.  McNeil,  4  Wh.,  209;  ^Dart- 
mouth  College  v.  Woodward,  4  Wh.,  518;  ^Ovvings  v.  Speed,  5  Wh., 
420;  *  P'armers  and  Mechanics'  Bank  v.  Smith,  6  Wh.,  131;  3  Green 
et  al.  V.  Middle,  8  Wh.,  i  ;  ^Ogden  v.  Saunders,  12  Wh.,  213;  s  Mason 
V.  Haile,  12  Wh.,  370;  ^  Satterlee  v.  Matthewson,  2  Pet.,  380;  ^  Hart  v. 
Lamphire,  3  Pet.,  280;  ^Craig  et  al.  v.  State  of  Missouri,  4  Pet.,  410; 
'^  Providence  Bank  t-.  IJillings  and  Pitman,  4  Pet.,  514;  ^  Byrne  v.  State 
of  Missouri,  8  Pet.,  40;  ^  Watson  v.  Mercer,  8  Pet.,  88;  ^  Mumma  z/. 
Potomac   Company,  8    Pet.,   281;    ^Beers   v.    Haughton,    9    Pet.,   329; 

1  Briscoe  et  al.  r'.  The  Bank  of  the  Commonwealth  of  Kentucky,  11 
Pet.,  257  ;  3 The  Proprietors  of  Charles  River  Bridge  v.  The  Proprietors 
of  Warren  Bridge,  11  Pet.,  420;  ^  Armstrong  v.  The  Treasurer  of 
Athens  Company,  16  Pet.,  281  ;  ^  Bronson  v.  Kinzie  et  al.,  i   How.,  311  ; 

2  McCracken  z/.  Hay  ward,  2   How.,  608  ;  ^  Gordon  57.  Appeal  Tax  Court, 

3  How.,  133;  8  State  of  Maryland  v.  Baltimore  and  (3hio  R.  R.  Co.,  3 
How.,  534;  3  Neil,  Moore  &  Co.,  v.  State  of  Ohio,  3  How.,  720;  ^Cook 
V.  Moffatt,  5  How.,  295;  2  Planters'  Bank  v.  Sharp  et  al.,  6  How.,  301 ; 
3  West  River  Bridge  Company  v-  Dix  et  al.,  6  IIovv.,  507;  "^Crawford 
et  al.  V.  Branch  Bank  of  Mobile,  7  How.,  279;  ^  Woodruff  v.  Trapnall, 
10  How.,  190;  3  I'aup  et  al.  v.  Drew,  10  How.,  21S;  '^,  ''Baltimore  and 
Susquehanna  R.  R.  Co.  v.  Nesbitt  et  al.,  10  How.,  395  ;  ^  Butler  et  al.  v. 
Pennsylvania,  10  How.,  402  ;  l  Harrington  et  al.  v.  The  Pjank  of  Alahami, 
13  How.,  12;  2  Richmond,  etc.,  R.  R.  Co.,  v.  The  Louise  R.   R.  Co,  13 


THE   CONSTITUTION  359 

How.,  71;  8  Trustees  for  Vincennes  University  v.  State  of  Indiana, 
14  How.,  26S ;  i^Curran  v.  State  of  Arkansas  et  al.,  15  How.,  304; 
3  State  Bank  of  Ohio  v.  Knoop,  16  How.,  369;  ^  Carpenter  et  al.  v. 
Commonwealth  of  Pennsylvania,  17  How.,  456;  ^  Dodge  v.  Woolsey, 
18  How.,  331;  '^  Beers  v.  State  of  Arkansas,  20  How.,  527;  3  Aspin- 
wall    et  al.  v.   Commissioners    of    County   of    Daviess,   22    How.,   364; 

3  Rector  of  Christ  Church,  Philadelphia,  v.  County  of  Philadelphia,  24 
How.,  300;  3  Howard  v.  Bugbee,  24  How.,  461  ;  5*Jefiferson  Branch  liank 
V.  Skelley,  i  Black,  436 ;  » Franklin  Branch  Bank  v.  State  of  Ohio,  i 
Black,  474  ;  ^  Trustees  of  the  Wabash  and  Erie  Canal  Company  v.  Beers, 

2  Black,  448;  ^(Jilman  v.  City  of  Sheboygan,  2  Black,  510;  ^  Bridge  Pro- 
prietors V.  Hoboken  Company,  i  Wall.,  116;  ^  Hawthorne  v.  Calef,  2 
Wall.,  10;  3The  Binghamton  Bridge,  3  Wall.,  51;  ^The  Turnpike 
Company  v.  The  State,  3  Wall.,  210;  ^Locke  v.  City  of  New  Orleans, 

4  Wall.,  172  ;  3  Railroad  Company  v.  Rock,  4  Wall.,  177  ;  ^Cummings  v. 
State  of  Missouri,  4  Wall.,  277  ;  ^  Ex  parte  Garland,  4  Wall.,  t^h  ;  3  Von 
Hoffman  v.  City  of  Quincy,  4  Wall.,  535;  ^  Mulligan  v.  Corbin,  7  Wall., 
487;  sp^urman  v.  Nichol,  8  Wall.,  44;  ^  Home  of  the  Friendless  v. 
Rouse,  8  Wall,  430;  ^The  Washington  University  v.  Rouse,  8  Wall., 
439;  ^Butz  V.  City  of  Muscatine,  8  Wall.,  575;  3  Drehman  v.  Stifle,  8 
Wall.,  595 ;  3  Hepburn  v.  Griswold,  8  Wall.,  603 ;  -^  Gut  v.  The  State, 
9    Wall.,    35;     3  Railroad     Company    v.     McClure,     10     Wall.,     511; 

3  Parker  v.  Davis,  12  Wall.,  457;  3  Curtis  v.  Whiting,  13  Wall.,  68; 
3  Pennsylvania  College  Cases,  13  Wall.,  190;  3  Wilmington  R.  R, 
V.  Reid,  sheriff,  13  Wall.,  264 ;  Salt  Company  v.  East  Saginaw, 
13  Wall.,  373;  3 White  v.  Hart,  13  Wall.,  646;'3  0sborn  v.  Nichol- 
son et  al.,  13  Wall.,  654;  3  Railroad  Company  v.  Johnson,  15  Wall., 
195;  3Case  of  the  State  Tax  on  Foreign-held  Bonds,  15  Wall.,  300; 
^Tomlinson  v.  Jessup,  15  Wall.,  454;  3  Tomlinson  v.  Branch  15 
Wall.,  460;  3  Miller  t.  The  State,  15  Wall.,  478;  3  Holyoke  Company 
V.  Lyman,  15  Wall.,  500;  3Gunn  v.  Barry,  15  Wall.,  610;  3  Humphrey  v. 
Pegues,  16  Wall.,  244;  3  Walker  v.  Whitehead,  16  Wall.,  314;  3  Sohn 
V.  Waterson,  17  Wall.,  596;  3  Barings  v.  Dabney,  19  Wall.,  i  ;  3  Head  v. 
The  University,  19  Wall.,  526;  3  Pacific  R.  R.  Co.  v.  Maguire,  20  Wall., 
36;  3  Garrison  v.  The  City  of  New  York,  21  Wall.,  196;  3  Ochiltree  v. 
The  Railroad  Company,  21  Wall.,  249;  3  Wilmington,  &c..  Railroad  v. 
King,  ex.,  91  U.  S.,  3;  3  County  of  Moultrie  v.  Rockingham  Ten  Cent 
Savings  Bank,  92  U.  S.,  631  ;  3  Home  Insurance  Company  v.  City  Coun- 
cil of  Augusta,  93  U.  S.,  116;  3  West  Wisconsin  R.  R.  Co.  v.  Super- 
visors, 93  U.  S.,  595;  Murray  v.  Charleston,  96  U.  S.,  432 ;  Edwards  v. 
Kearzey,  96  U.  S.,  595;  Keith  v.  Clark,  97  U.  S.,  454;  Railroad  Co. 
V.  Georgia,  98  U.  S.,  357  ;  Railroad  Co.  v.  Tennessee,  loi  U.  S.,  -^y] ; 
Weight  V.  Nagle,  loi  U.  S.,  791  ;  Stone  v.  Mississippi,  loi  U.  S.,  814; 
Railroad  Co.  v.  Alabama,  loi  tj.  S.,  832;  Louisiana  v.  New  Orleans,  loi 
U.  S.,  203;  Hall  V.  Wisconsin,  103  U.  S.,  5;  Pennyman's  Case,  103 
U.  S.,  7t4;  Guaranty  Co.  v.  Board  of  Liquidation,  105  U.  S.,  622; 
Greenwood  v.  Freight  Co.,  105  U.  S.,  13;  Kring  v.  Missouri,  107  U.  S., 
221  ;  Louisiana  v.  New  Orleans,  109  U.  S.,  285;  Gilfillan  v.  Union  Canal 
Co.,  109  U.  S.,  401 ;  Nelson  v.  St.  Martin's  Parish,  in  U.  S.,  716;  Chic. 
Life  Ins.  Co.  v.  Needles,  113  U.  S.,  574;  Virginia  Coupon  Cases,  114 
U.  S.,  270;  Amy  v.  Shelby  Co.,  114  U.  S.,  3S7  ;  Effinger  v.  Kennev,  115 
U.  S.,  566;  N.  Orleans  Gas  Co.  v.  La.  Light  Co.,  m;  U.  S.,  650;  N. 
Orleans  Water  Works  v.  Rivers,  115  U.  S!,  674;  Louisville  Gas  Co.  z/. 
Citizens'  Gas  Co.,  115  U.  S.,  683;    Fisk  v.  Jefferson   Police  Jury,  116 


36o  APPENDIX 

U.  S.,  131  ;  Stone  v.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.,  307; 
Stone  V.  111.  Central  R.  R.  Co.,  116  U.  S.,  347;  Royall  v.  Virginia, 
116  U.  S.,  572;  St.  Tammany  Water  Works  v.  N.  Orleans  Water 
Works,  120  U.  S.,  64;  Church  v.  Kelsey,  121  U.  S.,  282;  Lehigh 
Water  Co.  z.  Easton,  121  U.  S.,  38S;  Seibert  v.  Lewis,  122  U.  S.,  284; 
N.  Orleans  Water  Works  v.  La.  Sugar  Ref.  Co.,  125  U.  S.,  18;  May- 
nard  v.  Hill,  125  U.  S.,  140;  Jaehne  v.  N.  Y.,  12S  U.  S.,  189;  Denny  v. 
Bennett,  128  U.  S.,  489;  Chinese  Ex.  Case,  130  U.  S.,  588;  Williamson 
V.  N.  J.,  130  U.  S.,  189;  Hunt  V.  Hunt,  131  U.  S.,  clxv ;  Freeland  v. 
Williams,  131  U.  S.,  405  ;  Campbell  v.  Wade,  134  U.  S.,  34  ;  Penna.  R. 
Rd.  Co.  V.  Miller,  134  U.  S.,  75 ;  Hans  v.  Louisiana,  134  U.  S.,  i  ;  North 
Carolina  v.  Temple,  134  U.  S.,  22;  Crenshaw  v.  U.  S.,  134  U-  S.,  99; 
Louisiana  ex  rel.  The  N.  Y.  Guaranty  and  Indemnity  Co.  v.  Steele,  134 
U.  S.,  280;  Minneapolis  Eastern  Rwy.  Co.  v.  Minnesota,  134  U.  S.,  467  ; 
Hill  V.  Merchants'  Ins.  Co.,  134  U.  S.,  515;  Medley,  petitioner,  134 
U.  S,,  160;  Cherokee  Nation  v.  Kansas  Ry.  Co.,  641  ;  Virginia  Coupon 
Cases,  135  U.  S.,  662;  Mormon  Church  v.  U.  S.,  136  U.  S.,  i  ;  W^heeler 
V.  Jackson,  137  U.  S.,  245;  Holden  v.  Minnesota,  137  U.  S.,  483;  Sioux 
City  Street  Railway  Co.  v.  Sioux  City,  138  U.  S.,  98;  Cook  v.  U.  S., 
138  U.  S.,  157;  Belmont  Bridge  Co.  v.  Wheeling  Bridge  Co.,  138  U.  S., 
287  ;  Cook  County  v.  Calumet  and  Chicago  Canal  Co.,  138  U.  S.,  635; 
Pennoyer  v.  McConnaughty,  139  U.  S.,  i  ;  Scotland  County  Court  v. 
Hill,  139  U.  S.,  41  ;  Scott  v.  Neely,  139  U.  S.,  106;  Essex  Public  Road 
Board  v.  Shinkle,  140  U.  S.,  334  ;  Stein  v.  Bienville  Water  Supply  Co., 

141  U.  S.,67  ;  Henderson  Bridge  Co.  v.  Henderson,  141  U.  S.,  679;  New 
Orleans  v.  N.  O.  Water  W'ks,  142  U.  S.,  79;  Pacific  Ex.  Co.  v.  Seibert, 

142  U.  S.,339;  N.  O.  City  &  Lake  R.  Rd.  Co.  v.  New  Orleans;  Winona 
&  St.  Peter  R.  Rd.  Co.  v.  Plainview,  143  U.  S.,  371  ;  Louisville  Water 
Co.  57.  Clark,  143  U.  S.,  i  ;  N.  Y.  v.  Squire,  145  U.  S.,  175;  Brown  v. 
Smart,  145  U.  S.,  454;  Baker's  Exrs.  v.  Kilgore,  145  U.  S.,  487  ;  Morley 
V.  Lake  Shore  &  Mich.  Southern  Ry.  Co.,  146  U.  S.,  162  ;  Hamilton,  Ga., 
Ltd.,  Coke  Co.t/.  Hamilton,  146  U.  S.,  258  ;  Wilmington  &  Weldon  R.  Rd. 
Co.  V.  Alsbrook,  146  U.  S.,  279;  Butley  v.  Gorley,  146  U.  S.,  303;  Ills. 
Cent.  R.  Rd.  v.  Ills.,  146  U.  S.,  387;  Morley  t/.  Lake  Shore  &  Mich.  So. 
Rwv.  Co.,  146  U.  S.,  162;  Hamilton  Gas  L't  Qo.  v.  Hamilton  Citv,  146 
U.  S.,  238  ;  Wil.  &  Wei.  R.  R.  Co.  v.  Alsbrook,  146  U.  S.,  279;  Ill.'Cent. 
R.  Rd.  Co.  V.  Illinois,  146  U.  S.,  387;  Bier  v.  McGehee,  148  U.  S.,  137  ; 
Schurz  z'.  Cook,  148  U.  S.,  397;  Eustis  z'.  Bolles,  150  U.  S.,  361  ;  Duncan 
V.  Missouri,  152  U.  S.,  377;  Israel  i'.  Arthur,  152  U.  S.,  355;  New 
Orleans  v.  Benjamin,  153  U.  S.,  411  ;  Eagle  Ins.  Co.  v.  Ohio,  153  U-  S., 
446;  Erie  R.  Rd.  r.  Penna.,  153  U.  S.,  628  ;  Mobile  &  Ohio  R.  Rd.  v. 
Tenn.,  153  U.  S.,  486;  Pittsburgh  &  So.  Coal  Co.  v.  La.,  156  U.  S.,  590; 
U.  S.  ex  rel.  Siegel  v.  Thoman,  156  U.  S.,  353;  City  and  Lake  R.  Kd.  v. 
N.  O.,  ii;7  U.  S.,  219;  Central  Land  Co.  v.  Laidley,  159  U.  S.  103; 
Winona  &  St.  Peter  Land  Co.  v.  Minn.,  159  U.  S.,  528. 

^No  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for  executing  it's  in- 
spection Laws :  and  the  net  Produce  of  all  Duties  and 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States ;  and 


THE   CONSTITUTION  361 

all  such  Laws  shall  be  subject  to  the  Revision  and  Con- 
troul  of  the  Congress. 

McCuUoch  V.  State  of  Maryland,  4  Wh.,  316;  Gibbons  v.  Ogden,  9 
Wh.,  I  ;  Brown  v.  The  State  of  Maryland,  12  Wh.,  419;  Mager  v.  Grima 
et  al.,8  How.,  490;  Cooley  v.  Board  of  Wardens  of  Port  of  Philadelphia 
et  al.,  12  How.,  299;  Almy  v.  State  of  California,  24  How.,  169;  License 
Tax  Cases,  5  Wall.,  462 ;  Crandall  v.  State  of  Nevada,  6  Wall.,  35 ; 
Waring  v.  The  Mayor,  8  Wall.,  no;  Woodruff  v.  Perham,  8  Wall.,  123; 
Hinson  v.  Lott,  8  Wall.,  148  ;  State  Tonnage  Tax  Cases,  12  Wall.,  204  ; 
State  Tax  on  Railway  Gross  Receipts,  15  Wall.,  284;  Inman  Steamsliip 
Company  v.  Tinker,  94  U.  S.,  238  ;  Cook  v.  Pennsylvania,  97  U.  S.,  560; 
Packet  Co.  v.  Keokuk,  95  U.  S.  80 ;  People  v.  Compagnie  Generale  Trans- 
atlantique,  107  U.  S.,  59;  Brown  v.  Houston,  114  U.  S.,  622;  Pittsburgh 
&  So.  Coal  Co.  V.  Bates,  156  U.  S.,  577;  Pittsburgh  &  So.  Coal  Co.  v. 
La.,  156  U.  S.,  590. 

^No  State  shall,  without  the  Consent  of  Congress,  lay 
any  duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in 
time  of  Peace,  enter  into  any  Agreement  or  Compact  with 
another  State,  or  with  a  foreign  Power,  or  engage  in  War, 
unless  actually  invaded,  or  in  such  imminent  Danger  as 
will  not  admit  of  delay. 

Green  v.  Biddle,  8  Wh.,  i ;  Poole  et  al.  v.  The  Lessee  of  Fleeger 
et  al.,  II  Pet.,  185  ;  Cooley  v.  Board  of  Wardens  of  Port  of  Philadelphia 
et  al.,  12  How.,  299;  Peete  v.  Morgan,  19  Wall.,  5S1  ;  Cannon  v.  New 
Orleans,  20  Wall.,  577  ;  Inman  Steamship  Company  v.  Tinker,  94  U.  S., 
238;  Packet  Co.  v.  St.  Louis,  100  U.  S.,  423;  Packet  Co.  v.  Keokuk,  95 
U.  S.,  80  ;  Vicksburg  v.  Tobin,  100  U.  S.,  430;  Packet  Co.  v.  Catletts- 
burg,  105  U.  S.,  559;  Morgan  Steamship  Company  v.  Louisiana  Board 
of  Health,  118  U.  S.,  455;  Ouachita  Packet  Co.  v.  Aiken,  121  U.  S., 
444;  Huse  V.  Glover,  119  U.  S.,  543;  Harmon  v.  Chicago,  147  U.  S., 
396;  Va.  V.  Tenn.,  148  U.  S.,  503;  Wharton  v.  Wise,  153  U.  S.,  155. 


ARTICLE    II. 

Section  i.  ^The  executive  Power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He  shall 
hold  his  Office  during  the  Term  of  four  Years,  and,  to- 
gether with  the  Vice-President,  chosen  for  the  same  Term, 
be  elected,  as  follows 

-Each  State  shall  appoint,  in  such  Manner  as  the  Leg- 
islature thereof  may  direct,  a  Number  of  Electors,  equal 
to  the  whole  Number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress :  but  no 
Senator  or  Representative,  or  Person  holding  an  Office 


362  APPENDIX 

of  Trust  or  Profit  under  the  United  States,  shall  be  ap- 
pointed an  Elector. 

Chisholm,  ex.,  v.  Georgia,  2  Dall.,  419;  Leitensdorfer  et  al.  v.  Webb, 
20  How.,  176;  Ex  parte  Siebold,  100  U.  S.,  271  ;  McPherson  v.  Blacker, 
146  U.  S.,  I. 

*  [The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  Ballot  for  two  persons,  of  whom  one  at  least 
shall  not  be  an  Inhabitant  of  the  same  State  with  them- 
selves. And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each ;  which 
List  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  Seat  of  the  Government  of  the  United  States,  directed 
to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  Certificates,  and  the  Votes 
shall  then  be  counted.  The  Person  having  the  greatest 
Number  of  Votes  shall  be  the  President,  if  such  Number 
be  a  Majority  of  the  whole  Number  of  Electors  ap- 
pointed ;  and  if  there  be  more  than  one  who  have  such 
Majority,  and  have  an  equal  Number  of  Votes,  then  the 
House  of  Representatives  shall  immediately  chuse  by 
Ballot  one  of  them  for  President ;  and  if  no  Person  have 
a  Majority,  then  from  the  five  highest  on  the  List  the  said 
House  shall  in  like  Manner  chuse  the  President.  But 
in  chusing  the  President,  the  Votes  shall  be  taken  by 
States,  the  Representation  from  each  State  having  one 
Vote ;  A  quorum  for  this  Purpose  shall  consist  of  a  Mem- 
ber or  Members  from  two-thirds  of  the  States,  and  a 
Majority  of  all  the  States  shall  be  necessary  to  a  Choice. 
In  every  Case,  after  the  Choice  of  the  President,  the 
Person  having  the  greatest  Number  of  Votes  of  the  Elec- 
tors shall  be  the  Vice  President.  But  if  there  should 
remain  two  or  more  who  have  equal  Votes,  the  Senate 
shall  chuse  from  them  by  Ballot  the  Vice-President.] 

^The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their 
Votes ;  which  Day  shall  be  the  same  throughout  the 
United  States. 

*No  person  except  a  natural  born  Citizen,  or  a  Citizen 
of  the  United  States,  at  the  time  of  the  Adoption  of  this 
*  This  clause  has  been  superseded  by  the  twelfth  amendment. 


THE   CONSTITUTION  363 

Constitution,  shall  be  eligible  to  the  Office  of  President; 
neither  shall  any  Person  be  eligible  to  that  Office  who 
shall  not  have  attained  to  the  Age  of  thirty-five  Years, 
and  been  fourteen  Years  a  Resident  within  the  United 
States. 

English  V.  The  Trustees  of  the  Sailors'  Snug  Harbor,  3  Pet.,  99. 

^In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Resignation,  or  Inability  to  discharge 
the  Powers  and  Duties  of  the  said  Office,  the  same  shall 
devolve  on  the  Vice  President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal,  Death,  Resignation 
or  Inability,  both  of  the  President  and  Vice  President, 
declaring  what  Officer  shall  then  act  as  President,  and 
such  Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  e^lected. 

"The  President  shall,  at  stated  Times,  receive  for  his 
Services,  a  Compensation,  which  shall  neither  be  en- 
creased  nor  diminished  during  the  Period  for  which  he 
shall  have  been  elected,  and  he  shall  not  receive  within 
that  Period  any  other  Emolument  from  the  United  States, 
or  any  of  them. 

Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429. 

■^  Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation :  —  "I  do  sol- 
emnly swear  (or  affirm)  that  I  will  faithfully  execute  the 
Office  of  President  of  the  United  States,  and  will  to  the 
best  of  my  Ability,  preserve,  protect  and  defend  the  Con- 
stitution of  the  United  States." 

Section  2.  ^The  President  shall  be  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States,  and  of 
the  Militia  of  the  several  States,  when  called  into  the 
actual  Service  of  the  United  States ;  he  may  require  the 
Opinion,  in  writing,  of  the  principal  Officer  in  each  of 
the  executive  Departments,  upon  any  subject  relating 
to  the  Duties  of  their  respective  Offices,  and  he  shall 
have  Power  to  grant  Reprieves  and  Pardons  for  Of- 
fenses against  the  United  States,  except  in  Cases  of 
Impeachment. 

United  States  v.  Wilson,  7  Pet.,  150;  Ex  parte  William  Wells,  18 
How.,  307;  Ex  parte  Garland,  4  Wall.,  333;  Armstrong's  Foundry,  6 


364  APPENDIX 

Wall.,  766;  The  Grape  Shot,  9  Wall.,  129;  United  States  v.  Padelford, 
9  Wall.,  542;  United  States  v.  Klein,  13  Wall.,  128;  Armstrong  z/.  The 
United  States,  13  Wall.,  152;  Pargoud  v.  The  United  States,  13  Wall., 
156;  Hamilton  57.  Dillin,  21  Wall,  73  ;  Mechanics  and  Traders' Bank  z/. 
Union  Bank,  22  Wall.,  276;  Lamar,  ex.,  v.  Browne  et  al.,  92  U.  S.,  187; 
Wallach  et  al.  v.  Van  Riswick,  92  U.  S.,  202. 

^He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two- 
thirds  of  the  Senators  present  concur ;  and  he  shall  nom- 
inate, and  by  and  with  the  Advice  and  Consent  of  the 
Senate,  shall  appoint.  Ambassadors,  other  public  Minis- 
ters and  Consuls,  Judges  of  the  supreme  Court,  and  all 
other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall 
be  established  by  Law :  but  the  Congress  may  by  Law 
vest  the  Appointment  of  such  inferior  Officers,  as  they 
think  proper,  in  the  President  alone,  in  the  Courts  of  Law, 
or  in  the  Heads  of  Departments. 

Ware  v.  Hylton  et  al.,  3  Dall.,  199;  Marbury  v.  Madison,  i  Cr.,  137  ; 
United  States  z/.  Kirkpatrick,  9  Wh.,  720;  American  Insurance  Company 
V.  Canter  (356  bales  cotton),  i  Pet.,  511  ;  Foster  and  Elam  v.  Neilson,  2 
Pet.,  253 ;  Cherokee  Nation  v.  State  of  Georgia,  5  Pet.,  i  ;  Patterson  v. 
Gwinn  et  al.,  5  Pet.,  233;  Worcester  v.  State  of  Georgia,  6  Pet.,  515; 
City  of  New  Orleans  v.  De  Armas  et  al.,  9  Pet.,  224;  Holden  v.  Joy,  17 
Wall,  2ri  ;  Geofroy  v.  Riggs,  133  U.  S.,  258;  Homer  v.  U.  S.,  143  U.  S., 
570;  Shoemaker  v.  U.  S.,  147  U.  S.,  282. 

^The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by 
granting  Commissions  which  shall  expire  at  the  End  of 
their  next  Session. 

The  United  States  v.  Kirkpatrick  et  al.,  9  Wh.,  720. 

Section  3.  He  shall  from  time  to  time  give  to  the 
Congress  Information  of  the  State  of  the  Union,  and 
recommend  to  their  Consideration  such  Measures  as  he 
shall  judge  necessary  and  expedient ;  he  may,  on  extraor- 
dinary Occasions,  convene  both  Houses,  or  either  of  them, 
and  in  Case  of  Disagreement  between  them,  with  Respect 
to  the  Time  of  y\djournment,  he  may  adjourn  them  to  such 
Time  as  he  shall  think  proper ;  he  shall  receive  Ambassa- 
dors and  other  public  Ministers ;  he  shall  take  Care  that 
the  Laws  be  faithfully  executed,  and  shall  Commission 
all  the  Officers  of  the  United  States. 

Marbury  v.  Madison,  i  Cr.,  137;  Kendall,  Postmaster-General,  v.  The 
United  States,  12  Pet.,  524;  I.uther  z/.  Borden,  7  How.,  i;  The  State  of 


THE   CONSTITUTION  365 

Mississippi  v.  Johnson,  President,  4   Wall.,  475;   Stewart  v.  Kahn,  u 
Wall.,  493 ;  In  re  Neagle,  135  U.  S.,  i. 

Section  4.  The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from 
Office  on  Impeachment  for,  and  Conviction  of,  Treason, 
Bribery,  or  other  high  Crimes  and  Misdemeanors. 


ARTICLE    III. 

Section  i.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such  inferior 
Courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour,  and 
shall,  at  stated  Times,  receive  for  their  Services  a  Com- 
pensation which  shall  not  be  diminished  during  their 
Continuance  in  Office. 

Chisholm,  ex.,  z^.  Georgia,  2  Dall.,  419;  Stuart  v.  Laird,  i  Cr.,  299; 
United  States  v.  Peters,  5  Cr.,  115;  Cohens  v.  Virginia,  6  Cr.,  264; 
Martin  v.  Hunter's  Lessee,  i  Wh.,  304;  Osborn  v.  United  States  Bank, 
9  Wh.,  738;  Benner  et  al.  v.  Porter,  9  How.,  235;  The  United  States  v. 
Ritchie,  17  How.,  525;  Murray's  Lessee  et  al.  v.  Hoboken  Land  and 
Improvement  Company,  18  How.,  272  ;  Ex  parte  Vallandigham,  i  Wall., 
243;  Ames  V.  Kansas,  iil  U.  S.,  449;  In  re  Ross,  140  U.  S.,  453; 
McAllister  z'.  U.  S.,  141  U.  S.,  174;  Pollock  v.  P'armers*  Loan  &  Trust 
Co.,  157  U.  S.,  429. 

Section  2.  ^  The  judicial  Power  shall  extend  to  all 
Cases,  in  Law  and  Equity,  arising  under  this  Constitution, 
the  Laws  of  the  United  States,  and  Treaties  made,  or 
which  shall  be  made,  under  their  Authority ;  —  to  all 
Cases  Affecting  Ambassadors,  other  public  Ministers  and 
Consuls ;  —  to  all  Cases  of  admiralty  and  maritime  Juris- 
diction ;  —  to  Controversies  to  which  the  United  States 
shall  be  a  Party ;  —  to  Controversies  between  two  or  more 
States  ;  —  between  a  State  and  Citizens  of  another  State  ; 
—  between  Citizens  of  different  States,  —  between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of 
different  States,  and  between  a  State,  or  the  Citizens 
thereof,  and  foreign  States,  Citizens  or  Subjects. 

Hayburn's  Case  (note),  2  Dall.,  410;  Chisholm,  ex.,  v.  Georgia,  2 
Dall.,  419;  Glass  et  al.  v.  Sloop  Betsey,  3  Dall.,  6;  United  States  v.  La 


366 


APPENDIX 


Vengeance,  3  Dall.,  297  ;  Hollingsworth  et  al.  v.  Virginia,  3  DalL,  378; 
Mossman,  ex.,  v.  Higginson,  4  Dall.,  12  ;  Marbury  v.  Madison,  i  Cr., 
137  ;  Hepburn  et  al.  v.  Ellzey,  2  Cr.,  444  ;  United  States  v.  Moore,  3 
Cr.,  159;  Strawbridge  et  al.  v.  Curtiss  et  al.,  3  Cr.,  267  ;  Ex  parte  Boll- 
man  and  Swartwout,  4  Cr.,  75;  Rose  v.  Himely,  4  Cr.,  241 ;  Chappe- 
delaine  et  al.  v.  Dechenaux,  4  Cr.,  305 ;  Hope  Insurance  Company  v. 
Boardman  et  al.,  5  Cr.,  57;  Bank  of  United  States  v.  Devaux  et  al.,  5 
Cr.,  61  ;  Hodgson  et  al.  v.  Bowerbank  et  als.,  5  Cr.,  303  ;  Owings  v.  Nor- 
wood's Eessee,  5  Cr.,  344;  Durousseau  v.  The  United  States,  6  Cr., 
307  ;  United  States  v.  Hudson  and  Goodwin,  7  Cr.,  32  ;  Martin  v.  Hun- 
ter, I  Wh.,  304;  Colson  et  sX.v.  Lewis,  2  \Vh.,  377;  United  States  v. 
Bevans,  3  Wh.,  336;  Cohens  v.  Virginia,  6  Wh.,  264;  Ex  parte  Kearney, 
7  Wh.,  38;  Matthews  v.  Zane,  7  Wh.,  164;  Osborn  v.  United  States 
Bank,  9  Wh.,  738;  United  States  v.  Ortega,  11  Wh.,  467  ;  American 
Insurance  Company  v.  Canter  (356  bales  cotton),  i  Pet.,  511  ;  Jackson  v. 
Twentyman,  2  Pet.,  136;  Cherokee  Nation  v.  State  of  Georgia,  5  Pet., 
I  ;  State  of  New  Jersey  v.  State  of  New  York,  5  Pet.,  283;  Davis  v. 
Packard  et  al.,  6  Pet.,  41  ;  United  States  z-.  Arredondo  et  al.,  6  Pet., 
691;  Davis  V.  Packard  et  al.,  7  Pet.,  276 ;  BreedJove  et  al.  v.  Nickolet 
et  al.,  7  Pet.,  413;  Brown  v.  Keene,  8  Pet.,  112;  Davis  v.  Packard 
et  al.,  8  Pet.,  312;  City  of  New  Orleans  v.  De  Armas  et  al.,  9  Pet., 
224 ;  The  State  of  Rhode  Island  v.  The  Commonwealth  of  Massa- 
chusetts, 12  Pet.,  657  ;  The  Bank  of  Augusta  v.  Earle,  13  Pet.,  519;  The 
Commercial  and  Railroad  Bank  of  Vicksburg  v.  Slocomb  et  al.,  14  Pet., 
60;  Suydam  et  al.  v.  Broadnax,  14  Pet.,  67;  Prigg  ?'.  The  Common- 
wealth of  Pennsylvania,  16  Pet.,  530;  Louisville,  Cincinnati  and  Charles- 
ton Railway  Company  v.  Letson,  2  How.,  497  ;  Cary  et  als.  v.  Curtis,  3 
How.,  236;  Warring  v.  Clark,  5  How.,  441 ;  Luther  v.  Borden,  7  How., 
I ;  Sheldon  et  al.  v.  Sill,  8  How.,  441  ;  The  Propeller  Genesee  Chief  v. 
Fitzhugh  et  al.,  12  How.,  443;  Fretz  et  al.  v.  Ball  et  al.,  12  How.,  466; 
Neves  et  al.  v.  Scott  et  al.,  13  How.,  268;  State  of  Pennsylvania  v.  The 
Wheeling,  etc.,  Bridge  Company  et  al.,  13  How.,  518;  Marshall  v.  The 
Baltimore  and  Ohio  R.  R.  Co.,  16  How.,  314;  The  United  States  v. 
Guthrie,  17  How.,  284  ;  Smith  v.  State  of  Maryland,  iS  How.,  71  ;  Jones 
et  al.  V.  League,  18  How.,  76;  Murray's  Lessee  et  al.  v.  Hoboken  Land 
and  Improvement  Company,  18  How.,  272;  Hyde  et  al.  v.  Stone,  20 
How.,  170;  Irvine  v.  Marshall  et  al.,  20  How.,  558;  P"enn  z'.  Holmes,  21 
How.,  481  ;  Moorewood  et  al.  v.  Erequist,  23  How.,  491  ;  Commonwealth 
of  Kentucky  z'.  Dennison,  governor,  24  How.,  66;  Ohio  and  Mississippi 
Railroad  Company  v.  Wheeler,  i  Black,  286;  The  Steamer  Saint  Law- 
rence, I  lUack,  522  ;  The  Propeller  Commerce,  i  Black,  574 ;  Ex  parte 
Vallandigham,  i  Wall.,  243;  Ex  parte  Milligan,  4  Wall.,  i  ;  The  Moses 
Taylor,  4  Wall., 411  ;  State  of  Mississippi  v.  Johnson,  President,  4  W^all., 
475;  The  Hine  v.  Trevor,  4  Wall.,  555;  City  of  Philadelphia  v.  The 
Collector,  5  Wall.,  720;  State  of  Cieorgia  v.  Stanton,  6  Wall.,  50;  Payne 
V.  Hook,  7  Wall.,  425;  The  Alicia,  7  Wall.,  571;  Ex  parte  Ycrger,  8 
Wall.,  85;  Insurance  Company  v.  Dunham,  11  Wall.,  i;  Virginia  v. 
West  Virginia,  11  Wall.,  39;  Coal  Company  v.  Blatchford,  11  Wall., 
172;  Railway  Company  v.  Whitton's  Adm.,  13  Wall.,  270;  Tarble's 
Case,  13  Wall.,  397;  IMyew  et  al.  v.  The  United  States,  13  Wall.,  581; 
Davis  V.  Gray,  16  SVall.,  203;  Case  of  the  Sewing  Machine  Companies, 
18  Wall.,  353;  Insurance  Company  v.  Morse,  20  Wall.,  445;  Vannevar 
V.  Bryant,  21  Wall.,  41;  The  Lottawanna,  21  W'all.,  558;  Gaines  v. 
P'uentes  et  al.,  92  U.  S.,   10;    Miller  v.  Dews,  94  U.  S.,  444;   Doyle 


THE   CONSTITUTION  z^7 

V.  Continental  Insurance  Company,  94  U.  S.,  535;  Tennessee  v.  Davis, 
100  U.  S.,  257;  Baldwin  v.  Pranks,  120  U.  S.,  678;  Barron  v.  Burnside, 
121  U.  S.,  186;  St.  Louis,  Iron  Mountain  and  Southern  Railway  v. 
Vickers,  122  U.  S.,  360;  Chinese  Ex.  Case,  130  U.  S.,  581;  Brooks  v. 
Missouri,  124  U.  S.,394;  New  Orleans  Water  Works  v.  Louisiana  Sugar 
Refining  Co.,  125  U.  S.,  18;  Spencer  v.  Merchant,  125  U.  S.,  345;  Dale 
Tile  Mfg.  Co.  V.  Hyatt,  125  U.  S.,  46;  Felix  v.  Scharnweber,  125^  U.  S., 
54;  Hannibal  and  St.  Joseph  R.  R.  v.  Missouri  River  Packet  Co.,  125 
U.  S.,  260;  Kreiger  v.  Shelby  R.  R.  Co.,  125  U.  S.,  39;  Craig  v.  Leitens- 
dorfer,  127  U.  S.  764;  Jones  v.  Craig,  127  U.  S.,  213;  Wisconsin  v. 
Pelican  Ins.  Co.,  127  U.  S.,  265 ;  U.  ^.v.  Beebe,  127  U.  S.,  338 ;  Chinese 
E.x.  Case,  130  U.  S.,  581  ;  Lincoln  County  v.  Luning,  133  U.  S.,  529; 
Christian  v.  Atlantic  &  N.  C.  R.  Rd.  Co.,  135  U.  S.,  233 ;  Haus  v.  Louis- 
iana, 134  U.  S.,  I  ;  Louisiana  ex  rel.  The  N.  Y.  Guaranty  &  Indemnity 
Co.  V.  Steele,  134  U.  S.,  280;  Jones  v.  U.  S.,  137  U.  S.,  202;  Manchester 
V.  Mass.,  139  U.  S.,  240  ;  In  re  Ross,  150  U.  S.,  453 ;  In  re  Garnett,  141 
U.  S.,  I  ;  U.  S.  V.  Texas,  143  U.  S.,  621  ;  Cooke  v.  Avery,  147  U.  S., 
375 ;  S.  Pac.  Co.  v.  Denton,  146  U.  S.,  202  ;  Lawton  v.  Steele,  152  U.  S., 
133;  Interstate  Com.  Comsn.  v.  Brinson,  154  U.  S.,  447. 

2  In  all  Cases  affecting  Ambassadors,  other  public  Min- 
isters and  Consuls,  and  those  in  which  a  State  shall  be 
Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme 
Court  shall  have  appellate  Jurisdiction,  both  as  to  Law 
and  Fact,  with  such  Exceptions,  and  under  such  Regula- 
tions as  the  Congress  shall  make. 

Chisholm,  ex.,  v.  Georgia,  2  Dall.  419;  Wiscart  et  al.  v.  Dauchy, 
3  Dall.,  321;  Marbury  v.  Madison,  i  Cr.,  137;  Durousseau  et  al.  v. 
United  States,  6  Cr.,  307;  Martin  v.  Hunter's  Lessee,  i  Wh.,  304; 
Cohens  v.  Virginia,  6  Wh.,  234;  Ex  parte  Kearney,  7  Wh.,  38; 
Wayman  v.  Southard,  10  Wh.,  i  ;  Bank  of  the  United  States  v.  Hal- 
stead,  10  Wh.,  51;  United  States  v.  Ortega,  11  Wh.  467;  The  Chero- 
kee Nation  v.  the  State  of  Georgia,  5  Pet.,  i  ;  Ex  parte  Crane  et  als., 
5  Pet.,  189 ;  The  State  of  New  Jersey  v.  The  State  of  New  York,  5  Pet., 
283;  Ex  parte  Sibbald  v.  United  States,  12  Pet.,  488;  The  State  of 
Rhode  Island  v.  The  State  of  Massachusetts,  12  Pet.,  657;  State  of 
Pennsylvania  z/.  the  Wheeling,  &c.  Bridge  Company,  13  How.  518; 
In  Re  Kaine,  14  How.,  103;  Ableman  v.  Booth  and  United  .States  v. 
Booth,  22  How.,  506;  Freeborn  v.  Smith,  2  Wall.,  160;  Ex  parte 
McCardle,  6  Wall.,  318;  Ex  parte  McCardle,  7  Wall.,  506;  Ex  parte 
Yerger,  8  Wall.,  85  ;  The  Lucy,  8  Wall.,  307  ;  The  Justices  v.  Murray, 
9  Wall.,  274;  Pennsylvania  v.  Quicksilver  Company,  10  Wall.,  553; 
Murdock  v.  City  of  Memphis,  20  Wall.,  590  ;  Bors  v.  Preston,  in  U.  vS., 
252 ;  Ames  V.  Kansas,  in  U.  S.,  449 ;  Clough  v.  Curtis,  134  U.  S.,  361  ; 
In  re  Neagle,  135  U.  S.,  i ;  Mobile  &  Ohio  R.  Rd.  v.  Tean.,  153  U.  S., 
486. 

^The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury ;  and  such  Trial  shall  be  held  in  the 
State  where  the  said  Crimes  shall  have  been  committed; 


368  APPENDIX 

but  when  not  committed  within  any  State,  the  Trial  shall 
be  at  such  Place  or  Places  as  the  Congress  may  by  Law 
have  directed. 

Ex  parte  Milligan,  4  Wall.,  2;  Ellenbecker  v.  Plymouth  County,  134 
U.  S.,  31  ;  Cook  V.  U.  S.,  138  U.  S.  157 ;  In  re  Ross,  140  U.  S.  453. 

Section  3.  ^  Treason  against  the  United  States,  shall 
consist  only  in  levying  War  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and  Comfort.  No  Per- 
son shall  be  convicted  of  Treason  unless  on  the  Testimony 
of  two  Witnesses  to  the  same  overt  Act,  or  on  Confession 
in  open  Court. 

United  States  v.  The  Insurgents,  2  Dall.,  335  ;  United  States  v. 
Mitchell,  2  Dall.,  348;  Ex  parte  Bollman  and  Swartwout,  4  Cr.  75; 
United  States  v.  Aaron  Burr,  4  Cr.  469. 

^The  Congress  shall  have  power  to  declare  the  Punish- 
ment of  Treason,  but  no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  except  during  the  Life 
of  the  Person  attainted. 

Bigelow  V.  Forest,  9  Wall.,  339;  Day  v.  Micou,  18  Wall.,  156;  Ex 
parte  Lange,  18  Wall,  163 ;  Wallach  et  al.  v.  Van  Riswick,  92  U.  S., 
202. 


ARTICLE   IV. 

Section  i.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Records,  and  judicial  Pro- 
ceedings of  every  other  State.  And  the  Congress  may  by 
general  Laws  prescribe  the  Manner  in  which  such  Acts, 
Records  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

Mills  V.  Duryee,  7  Cr.,  481;  Hampton  v.  McConnel,  3  Wh.,  234; 
Mayhew  v.  Thatcher,  6  Wh.,  129;  Darby's  Lessee  v.  Mayer,  10  Wh., 
465;  The  United  States  v.  Amedy,  11  Wh.  392  ;  Caldwell  et  al.  v.  Car- 
rington's  Heirs,  9  Pet.,  86;  M'Klmoyle  v.  Cohen,  13  Pet.,  312;  The 
Bank  of  Augusta  v.  Earle,  13  Pet.,  519;  Bank  of  the  State  of  Alabama 
V.  Dalton,  9  IIow.,  522;  D'Arcy  v.  Ketchum,  11  How.,  165;  Christmas 
V.  Russell,  5  Wall.,  290;  Green  v.  Van  lUiskirk,  7  Wall.,  139;  Paul  v. 
Virginia,  8  Wall.,  168;  Board  of  Public  Works  v.  Columbia  College, 
17  Wall.,  521;  Thompson  v.  Whitman,  18  Wall.,  4^7;  Bonaparte  v. 
Tax  Court,  104  U.  S.,  592;  Hanley  z/.  Donoghue,  116  U.  S.,  i  ;  Renaud 
V.  Abbott,  116  U.  S.  277  ;  Chic,  and  Alton  R.  R.  v.  Wiggins  Ferry  Co., 
119  U.  S.,  615;  Cole  V.  Cunningham,  133  U.  S..  107  ;  Blount  v.  Walker, 
134  U.  S.,  607;  Texas  &  Pacific  Ry.  to.  v.  Southern  Pacific  Co.,  137 


THE   CONSTITUTION  369 

U.  S.,  48;  Simmons  v.  Saul,  138  U.  S.,  439;  Reynolds  v.  Stockton, 
140  U.  S.,  254;  Carpenter  v.  Strange,  141  U.  S.  87;  Glenn  v.  Garth, 
147  U.  S.,  360;  Huntington  v.  Allriil,  146  U.  S.,  657. 

Section  2.  ^The  Citizens  of  each  State  shall  be  en- 
titled to  all  Privileges  and  Immunities  of  Citizens  in  the 
several  States. 

Bank  of  United  States  v.  Devereux,  5  Cr.,  61;  Gassies  j/.  Ballou, 
6  Pet.,  761  ;  The  State  of  Rhode  Island  v.  The  Commonwealth  of  Mas- 
sachusetts, 12  Pet.,  657;  The  Bank  of  Augusta  v.  Karle,  13  Pet.,  519; 
Moore  v.  The  People  of  the  State  of  Illinois,  14  How.,  13;  Conner 
et  al.  V.  Elliot  et  a).,  18  How.,  591  ;  Dred  Scott  v.  Sanford,  19  How.,  393 ; 
Crandall  v.  State  of  Nevada,  6  Wall.,  35  ;  Woodruff  v.  Parham,  8  Wall., 
123;  Paul  V.  Virginia,  8  Wall.,  168;  Uownham  ?'.  Alexandria  Council, 
10  Wall.,  173;  Liverpool  Insurance  Company  v.  Massachusetts,  10 
Wall.,  566;  Ward  v.  Maryland,  12  Wall.,  418;  Slaughterhouse  Cases, 
16  Wall.,  36;  Bradwell  v.  The  State,  16  Wall.,  130;  Chemung  Bank  z*. 
Lowery,  93  U.  S.,  72;  McCready  v.  Virginia,  94  U.  S.,  391  ;  Brown  v. 
Houston,  1 14  U.  S.,  622  ;  Pembina  Mining  Co.  v.  Penna.,  125  U.  S.,  181  ; 
Kimmish  v.  Ball,  129  U.  S.,  217;  Cole  v.  Cunningham,  133  U.  S.,  107; 
Leisy  v.  Hardin,  135  U.  S.,  100;  Minnesota  v.  Barber,  136  U.  S.,  313, 
McKane  v.  Durston,  153  U.  S.,  684;  Pittsburgh  &  So.  Coal  Co.  v. 
Bates,  156  U.  S.,  577. 

^A  Person  charged  in  any  State  with  Treason,  Felony, 
or  other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  demand  of  the  executive 
Authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  Jurisdiction  of  the 
Crime. 

Holmes  v,  Jennison  et  al.,  14  Pet.  540  ;  Commonwealth  of  Kentucky 
V.  Dennison,  governor,  24  How.,  66;  Taylor  v.  Tainter,  16  Wall.,  366; 
Lascelles  v.  Georgia,  148  U.  S.,  537  ;   Pearce  v.  Texas,  155  U.  S.,  311. 

^No  Person  held  to  Service  or  Labor  in  one  State, 
under  the  Laws  thereof,  escaping  into  another,  shall,  in 
Consequence  of  any  Law  or  Regulation  therein,  be  dis- 
charged from  such  Service  or  Labor,  but  shall  be  deliv- 
ered up  on  Claim  of  the  Party  to  whom  such  Service  or 
labor  may  be  due. 

Prigg  V.  The  Commonwealth  of  Pennsylvania,  16  Pet.,  539;  Jones  v. 
Van  Zandt,  5  How.,  215;  Strader  et  al.  v.  Graham,  10  How.,  82; 
Moore  v.  The  People  of  the  .State  of  Illinois,  14  How.,  13  ;  Dred  Scott 
V.  Sanford,  19  How.,  393;  Ableman  v.  Booth  and  United  States  v. 
Booth.  21  How.,  506;  Callan  v.  Wilson,  127  U.  S.,  540;  Nashville, 
Chattanooga,  etc.,  Rwy.  v.  Alabama,  128  U.  S.  96. 

Section  3.  ^New  States  may  be  admitted  by  the  Con- 
gress into  this  Union ;   but  no  new  State  shall  be  formed 

24 


370  APPENDIX 

or  erected  within  the  Jurisdiction  of  any  other  State ;  nor 
any  State  be  formed  by  the  Junction  of  two  or  more 
States,  or  parts  of  States,  without  the  Consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

American  Insurance  Company  et  al.  v.  Canter  (356  bales  cotton), 
I  Pet.  511  ;  Pollard's  Lessee  v.  Hagan,  3  How.  212;  Cross  et  al.  v. 
Harrison,  16  How.,  164. 

^The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Terri- 
tory or  other  Property  belonging  to  the  United  States; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State. 

McCullough  V.  State  of  Maryland,  4  Wh.,  316;  American  Insurance 
Company  v.  Canter,  i  Pet.,  511  ;  United  States  v.  Gratiot  et  al.,  14  Pet., 
526;  United  States  v.  Rogers,  4  How.,  567;  Cross  et  al.  v.  Harrison,  16 
How.,  164;  Muckey  et  al.  v.  Coxe,  18  How.,  100;  Gibson  v.  Chouteau, 
13  Wall.,  92;  Clinton  v.  Englebert,  13  Wall.,  434;  Beall  v.  New 
Mexico,  16  Wall.,  535;  Davis  z'.  Beason,  133  U.  S.,  333;  Wisconsin 
Central  R.  Rd.  Co.  v.  Price  County,  133  U.  S.,  496;  Cope  v.  Cope,  137 
U.  S.,  682  ;  Mormon  Church  v.  U.  S.,  136  U.  S.,  i. 

Section  4.  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government, 
and  shall  protect  each  of  them  against  Invasion ;  and  on 
Application  of  the  Legislature,  or  of  the  Executive  (when 
the  Legislature  cannot  be  convened)  against  domestic 
Violence. 

Luther  v.  Borden,  7  How.,  i ;  Texas  v.  White,  7  Wall.,  700. 


ARTICLE   V. 

The  Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to  this 
Constitution,  or,  on  the  Application  of  the  Legislatures  of 
two-thirds  of  the  several  States,  shall  call  a  Convention 
for  proposing  Amendments,  which,  in  either  Case,  shall 
be  valid  to  all  Intents  and  Purposes,  as  part  of  this  Con- 
stitution, when  ratified  by  the  Legislatures  of  three-fourths 
of  the  several  States,  or  by  Conventions  in  three-fourths 


THE   CONSTITUTION  371 

thereof,  as  the  one  or  the  other  Mode  of  Ratification 
may  be  proposed  by  the  Congress;  Provided  that  no 
Amendment  which  may  be  made  prior  to  the  Year  One 
thousand  eight  hundred  and  eight  shall  in  any  Manner 
affect  the  first  and  fourth  Clauses  in  the  Ninth  Section 
of  the  first  Article;  and  that  no  State,  without  its  Con- 
sent, shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

Hollingsworth  et  al.  v.  Virginia,  3  Dallas,  378. 


ARTICLE   VI. 

^  All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution,  as 
under  the  Confederation. 

2  This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof ;  and  all 
Treaties  made,  or  which  shall  be  made,  under  the 
Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land ;  and  the  Judges  in  every  State  shall 
be  bound  thereby,  any  Thing  in  the  Constitution  or  Laws 
of  any  State  to  the  Contrary  notwithstanding. 

Hayburn's  Case,  2  Dall.,  409;  Ware  j'.  Hylton,  3  Dall.,  199;  Calder 
and  Wife  v.  Bull  and  Wife,  3  Dall.,  386 ;  Marbury  v.  Madison,  i  Cr.,  137; 
Chirac  v.  Chirac,  2  Wh.,  259;  McCulloch  v.  The  State  of  Maryland,  4 
Wh.,  316  ;  Society  v.  New  Haven,  8  Wh.,  464  ;  Gibbons  v.  Ogden,  9  Wh., 
I  ;  Foster  and  Elam  v.  Neilson,  2  Pet ,  253;  Buckner  v.  Fiiiley,  2  Pet., 
586;  Worcester  v.  State  of  Georgia,  6  Pet.,  515;  Kennett  et  al.  v.  Cham- 
bers, 14  How.,  38;  Lodge  v.  Woolsey,  18  How.,  331;  State  of  New 
York  V  Dibble,  21  How.,  366;  Ableman  v.  Booth  and  United  States 
V.  Booth,  21  How.,  506;  Sinnot  v.  Davenport,  22  How.,  227  ;  Foster  v. 
Davenport,  22  How.,  244;  Havea  v.  Yaker,  9  Wall.,  32;  Whitney  v. 
Robertson,  124  U.  S.,  190;  In  re  Neagle,  135  U.  S.,  i ;  Cherokee  Nation 
V.  Kansas  Ry.  Co.,  135  U.  S.,  641  ;  Cook  Co.  v  Calumet  &  Chicago 
Canal  Co.,  138  U.  S.  635;  Gulf,  Colorado  &  Santa  Fe  Rwy.  Co.  v.  Hefley, 
15S  U.  S.,  98;  In  re  Quarles  j/.  Butler,  158  U.  S.  532. 

^  The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or    Affirmation,    to    support    this    Constitution ;    but    no 


372  APPENDIX 

religious  Test  shall  ever  be  required  as  a  Qualification 
to  any  Office  or  public  Trust  under  the  United  States. 
Ex  parte  Garland,  4  Wall.,  333  ;  Davis  v.  Beason,  133  U.  S.,  333. 

ARTICLE   VII. 

The  ratification  of  the  Conventions  of  nine  States  shall 
be  sufficient  for  the  Establishment  of  this  Constitution 
between  the  States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the 
States  present  the  Seventeenth  Day  of  September  in 
the  Year  of  our  Lord  one  thousand  seven  hundred  and 
Eighty  seven  and  of  the  Independence  of  the  United 
States  of  America  the  Twelfth.  In  Witness  whereof 
We  have  hereunto  subscribed  our  Names, 

G°   WASHINGTON— 
Presidt  and  deputy  from  Virginia 

New  Hampshire. 

John  Langdon  Nicholas  Oilman 

t. 

Massachusetts. 
Nathaniel  Gorham  Rufus  King 

Connecticut. 
Wm  Saml  Johnson  Roger  Sherman 

New  York. 
Alexander  Hamilton 

New  Jersey. 

Wil:  Livingston        Wm  Patterson 
David  Brearley.         Jona:  Dayton 


THE    CONSTITUTION 
Pennsylvania. 


373 


B.  Franklin 
RoBT.  Morris 
Thos.  Fitzsimons 
James  Wilson 


Geo:  Read 
John  Dickinson 
Jaco:  Broom 


James  McHenry 
Danl  Carroll 


John  Blair — 


Wm    Blount 
Hu  Williamson 


Thomas  Mifflin 
Geo.  Clymer 
Jared  Ingersoll 
Gouv  Morris 

Delaware, 

Gunning  Bedford  jun 
Richard  Bassett 


Maryland. 
Dan  :  of  St  Thos  Jenifer 

Virginia. 
James  Madison  Jr. 

North  Carolina. 

RiCHD   DOBBS    SpAIGHT, 

South  Carolina. 


J.  Rutledge  Charles  Cotesworth  Pincknei 

Charles  Pinckney     Pierce  Butler. 


Georgia. 
William  Few  Abr  Baldwin 

Attest:  WILLIAM  JACKSON,  Secretary. 


374  APPENDIX 


Articles  in  Addition  To,  and  Amendment  Of,  the  Con- 
stitution OF  THE  United  States  of  America,  Proposed 
BY  Congress,  and  Ratified  by  the  Legislatures  of  the 
Several  States,  Pursuant  to  the  Fifth  Article  of 
THE  Original  Constitution. 

[EUenbecker  v.  Plymouth  County,  134  U.  S.,  3.] 

ARTICLE   I.* 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 

Terret  et  al.  v.  Taylor  et  al.,  9  Cr.,  43 ;  Vidal  et  al.,  v.  Girard  et  al.,  2 
How.,  127;  Ex  parte  Garland,  4  Wall.,  333;  United  States  v.  Cruik- 
shank  et  al.,  92  U.  S.,  542;  Reynolds  v.  United  States,  98  U.  S.,  145; 
Davis  V.  Beason,  133  U.  S.,  333;  In  re  Rapier,  143  U.  S.,  no;  Homer z/. 
U.  S.,  143  U.  S.,  192. 

[ARTICLE   II.] 

A  well  regulated  Militia,  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
Arms,  shall  not  be  infringed. 

Presser  v.  Illinois,  116  U.  S.,  252. 

[ARTICLE   III.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  Owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

*The  first  ten  amendments  to  the  Constitution  of  the  United  States 
were  proposed  to  the  legislatures  of  the  several  States  bv  the  first 
Congress,  on  the  2Sth  of  September,  1789.  They  were  ratified  by  the  fol- 
lowing States,  and  the  notifications  of  ratification  bv  the  governors 
thereof  were  successively  communicated  by  the  President  to  Congress : 
New  Jersey,  November  20,  1789;  Maryland,  December  19,  17S9  ;  North 
Carolina,  December  22,1789;  South  Carolina,  January  19,  1790:  New 
Hampshire,  January  25,  1790;  Delaware,  January  28.  1790;  Pennsyl- 
vania, March  ID,  1790;  New  York,  March  27,  1790;  Rhode  Island, June 
15,  1790  ;  Vermont,  November  3,  I79l,and  Virginia.  Decemher  15,  1791. 
There  is  no  evidence  on  the  journals  of  Congress  that  the  legislatures  of 
Connecticut,  Georgia,  and  Massachusetts  ratified  them. 


THE   CONSTITUTION  375 


[ARTICLE    IV.] 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Smith  V.  State  of  Maryland,  i8  How.,  71 ;  Murray's  Lessee  et  al.  v. 
Hoboken  Land  and  Improvement  Company,  18  How.,  272;  Ex  parte 
Milligan,  4  Wall,  2  ;  Boyd  v.  United  States,  116  U.  S.,  616;  Fong  Yuen 
Ting  V.  U.  S.,  149  U.  S.,  698. 


[ARTICLE   v.] 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  Grand  Jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger ;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put  in 
jeopardy  of  life  or  limb ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public 
use,  without  just  compensation. 

United  States  v.  Perez,  9  Wh.,  579;  Barron  v.  The  City  of  Baltimore, 

7  Pet.,  243;  Fox  V.  Ohio,  t;  How.,  410;  West  River  Bridge  Company  i-. 
Dix  et  a).,  6  How.,  507;  Mitchell  v.  Harmony,  13  How.,  115;  Moore,  ex., 
V.  The  People  of  the  State  of  Illinois,  14  How.,  13;  Murray's  Lessee  et 
al.  V.  Hoboken  Land  and  Improvement  Company,  18  How.,  272;  Dynes 
V.  Hoover,  20  How.,  65;  Withers  v.  Buckley  et  al.,  20  How.,  84;  Gil- 
man  V.  The  City  of  Sheboygan,  2  Black,  510 ;  Ex  parte  Milligan,  4  Wall., 
2;  Twitchell  v.  The  Commonwealth,  7  Wall.,  321  ;  Hepburn  v.  Griswold, 

8  Wall.,  603;  Miller  v.  United  States,  11  Wall.,  268;  Legal  Tender 
Cases,  12  Wall.,  457;  Pumpelly  f.  Green  Bay  Company,  13  Wall,  166; 
Osborn  v.  Nicholson,  13  Wall..  654;  Ex  parte  Lange,  18  Wall.,  163; 
Kohl  et  al.  v.  United  States,  91  U.  S.,  367  ;  Cole  v.  La  Grange,  1 13  U.  S., 
i;  Ex  parte  Wilson,  114  U.  S.,  417;  Brown  v.  Grant,  116  U.  S.,  207; 
Boyd  V.  United  States,  116  U.  S.,  616;  Makin  v.  United  States,  117 
U.  S.,  348 ;  Ex  parte  Bain,  121  U.  S.,  I;  Parkinson  v.  United  States, 
121  U.  S.,  281  ;  Spies  v.  Illinois,  123  U.  S.,  131  ;  Sands  v.  Manistee 
River  Improvement  Company,  123  U.  S.,  288;  Mugler  v.  Kansas,  123 


376  APPENDIX 

U.  S.,623  ;  Great  Falls  Manufacturing  Company  z/.  The  Attorney-General, 
124  U.  S.,  581  ;  United  States  v.  De  Walt,  128  U.  S.,  393;  Huling  v. 
Kaw  Valley  Railway  and  Improvement  Company,  130  U.  S.,  559;  Free- 
land  V.  Williams,  131  U.  S.,  405;  Cross  v.  North  Carolina,  132  U.  S., 
131;  Manning  v.  French,  133  U.  S.,  186;  Searle  v.  School  Dist.  No.  2, 
133  U.  S.,  553;  Palmer  v.  McMahon,  133  U.  S.,  660;  Ellenbecker  v. 
Plymouth  County,  134  U.  S  ,  31  ;  Chic,  Mil.  &  St.  Paul  Rwy.  Co.  v. 
Minnesota,  134  U.  S.,  418;  Wheeler  z'.  Jackson,  137  U.  S.,  245;  Holden 
V.  Minnesota,  137  U.  S.,  245;  Caldwell  v.  Texas,  137  IJ.  S.,  692; 
Cherokee  Nation  v.  Kansas  Ry.  Co.,  135  U.  S.,  641  ;  Kaukauna  Water 
Power  Co.  f.  Miss.  Canal  Co.,  142  U.  S.,  254;  New  Orleans  v.  N.  O. 
Water  W'ks,  142  U.  S.,  79;  Counselman  v.  Hitchcock,  142  U.  S.,  547; 
Simmonds  v.  U.  S.,  142  U.  S.,  14S;  Horn  Silver  Mining  Co.  v.  N.  Y., 
143  U.  S.,  305;  Hallinger  v.  Davis,  146  U.  S.,  314;  Shoemaker  v.  U.  S., 
147  U.  S.,  282  ;  Thorington  v.  Montgomery,  147  U.  S.,  490  ;  Yesler  v. 
Wash'n  Harbor  Line  Coms'rs,  146  U.  S.,  646;  Monongahela  Nav.  Co. 
V.  U.  S.,  148  U.  S.,  312;  Fong  Yuen  Ting  v.  U.  S.,  149  U.  S.,  69S;  In 
re  Lennon,  150  U.  S.,  393;  Pitts.,  C.  C.  &  St.  L.  v.  Backus,  154  U.  S., 
421 ;  Interstate  Com.  Comsn.  v.  Brimson,  154  U.  S.,  447  ;  Pearce  v. 
Texas,  155  U.  S.,  311;  Linford  v.  Ellison,  155  U.  S.,  503;  Andrews  &•. 
Swartz,  156U.  S.,  272;  Pittsburgh  &  Southern  Coal  Co.  z/.  La.,  156  U.S., 
590;  St.  L.  &  S.  F.  Rwy.  Co.  v.  Gill,  156  U.  S.,  649;  Johnson  v.  Sayre, 
158  U.  S.,  109;  Sweet  v.  Rechel,  159  U.  S.,  380. 


[ARTICLE    VL] 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
.the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  Assistance  of  Counsel  for  his  defence. 

United  States  v.  Cooledge,  i  \Vh.,  415;  Ex  parte  Kearney,  7  \Vh., 
38;  United  States  ly.  Mills,  7  Pet.,  142;  Barron  v.  City  of  lialtimore, 
7  Pet.,  243;  Fox  z'.  Ohio,  5  How.,  410;  Withers  v.  Buckley  et  al.,  20 
How,  84;  Ex  parte  Milligan,  4  Wall,  2;  Twitchell  v.  The  Common- 
wealth, 7  Wall.,  321;  Miller  v.  The  United  States,  11  Wall.,  26S ; 
United  States  v.  Cook,  17  Wall.,  168  ;  United  States  v.  Cruikshank  et  al., 
92  U.  S.,  542;  Spies  z*.  Illinois.  123  U.  S.,  131  ;  Ellenbecker  z^.  Plymouth 
Co..  134  U.  S.,  31  ;  Jones  v.  U.  S.,  137  U.  S.,  202;  Cook  v.  U.  S.,  138 
U.  S.,  157;  In  re  Ross,  140  U.  S.,  453;  Hallinger  v.  Davis,  146  U.  S., 
314;  Mattoxz/.  U.  S.,  156U.  S.,  237  ;  Bergemannz/.  Becker,  157  U.  S.,  655. 


THE    CONSTITUTION  377 


[ARTICLE   VII.] 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury,  shall  be 
otherwise  re-examined  in  any  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law. 

United  States  z'.  La  Vengeance,  3  Dall.,  297;  Bank  of  Columbia  t'. 
Oakley,  4  Wh.,  235;  Parsons  v.  Bedford  et  al.,  3  Pet.,  433 ;  Lessee  of 
Livingston  v.  Moore  et  al.,  7  Pet.,  469;  Webster  w.  Reid,  ii  How.,  437 ; 
State  of  Pennsylvania  v.  The  Wheeling,  &c.,  Bridge  Company  et  al.,  13 
How.,  518;  Tlie  Justices  v.  Murray,  9  Wall.  274;  Edwards  v.  Elliott  et 
al.,  21  Wall.,  532;  Pearson  z/.  Yewdall,  95  U.  S.,  294;  McElrath  v. 
United  States,  102  U.  S.,  426 ;  Callan  t/.  Wilson,  127  U.  S.,  540;  Ark. 
Valley  Land  and  Cattle  Co.  v.  Mann,  130  U.  S.,  69;  Whitehead  v.  Shat- 
tuck,  138  U.  S.,  146;  Scott  V.  Neely,  140  U.  S.,  106;  Cates  v.  Allen,  149 
U.  S.,  451. 

[ARTICLE   VIII.] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Pervear  v.  Commonwealth,  5  Wall.,  475;  Manning  v.  French,  133 
U.  S.,  186;  Ellenbecker  v.  Plymouth  County,  134  U.  S.,  31  ;  In  re  Kemm- 
ler,  136  U.  S.,  436;  McElvaine  v.  Brush,  142  U.  S.,  155;  O'Neill  v. 
Vermont,  144  U.  S.,  323. 


[ARTICLE    IX.] 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people. 

Lessee  of  Livingston  v.  Moore  et  al.,  7  Pet.,  469. 

[ARTICLE    X.] 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

Chisholm,  ex.,  v.  State  of  Georgia,  2  Dall.,  419;  Hollingsworth  et  al., 
V.  The  State  of  Virginia,  3  Dall.,  378  ;  Martin  v.  Hunter's  Lessee,  i  Wh., 


378  APPENDIX 

304;  McCuUoch  V.  State  of  Maryland,  4  Wh.,  316;  Anderson  v.  Dunn,  6 
Wh.,  204;  Cohen  v.  Virginia,  6  Wh.,  264;  Osborn  v.  United  States 
Bank,  9  Wh.,  73S ;  Buchler  v.  Finley,  2  Pet.,  586;  Ableman  v.  Booth,  21 
How.,  506;  The  Collector  v.  Day,  11  Wall.,  113;  Claflin  v.  Houseman, 
assignee,  93  U.  S.,  130 ;  Inman  Steamship  Company  v.  Tinker,  94  U.  S., 
238;  Church  V.  Kelsey,  121  U.  S.,  282;  Ouachita  Packet  Co.  v.  Aiken, 
121  U.  S.,  444  ;  W.  U.  Tel.  Co.  v,  Pendleton,  122  U.  S.,  347  ;  Bowman  v. 
Chicago  and  Northwestern  Rwy.  Co,  125  U.  S.,465;  Mahon  v.  Justice, 
127  U.  S.,  700;  Leisy  v.  Hardin,  135  U.  S.,  100;  Manchester  v.  Mass., 
139  U.  S.,  240;  Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.,  429. 

ARTICLE    XL* 

The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State. 

State  of  Georgia  v.  Brailsford  et  al.,  2  DalL,  402;  Chisholm,  ex.,  v. 
State  of  Georgia,  2  DalL,  419;  Hollingsworth  et  al.  7).  Virginia,  3  DalL, 
378;  Cohen  t/.  Virginia,  6  Wh.,  264;  Osborn  f.  United  States  Bank,  9 
Wh.,  738;  United  States  z'.  The  Planters'  Bank,  9  Wh.,  904;  The  Gover- 
nor of  Georgia  J/.  Juan  Madrazo,  i  Pet.,  no;  Cherokee  Nation  v.  State 
of  Georgia,  5  Pet.,  i  ;  Briscoe  v.  The  Bank  of  the  Commonwealth  of 
Kentucky,  11  Pet.,  257  ;  Curran  z/.  State  of  Arkansas  et  al.,  15  How.,  304; 
New  Hampshire  z/.  Louisiana,  108  U.  S.,  76;  Virginia  Coupon  Cases, 
114  U.  S.,  270;  Hagood  V.  Southern,  117  U.  S.,  52;  In  re  Ayres,  123 
U.  S.,  443;  Lincoln  County  z'.  Luning,  133  U.  S.,  529;  Coupon  Cases, 
135  U.  S.,  662  ;  Pennoyer  v.  McConnaughy,  140  U.  S.,  I  ;  In  re  Taylor, 
149  U.  S.,  164;  Reagan  71.  Farmers'  Loan  and  Trust  Co.,  154  U.  S.,  362; 
Reagan  v.  Mercantile  Trust  Co.,  154  U.  S.,  413. 

ARTICLE    Xll.t 

The  Electors  shall  meet  in  their  respective  states  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 

*  The  eleventh  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Third 
Congress,  on  the  5th  of  March,  1794;  and  was  declared  in  a  message 
from  the  President  to  Congress,  dated  the  8th  of  January,  1798,  to  have 
been  ratified  liy  the  legislatures  of  three-fourths  of  the  States. 

t  Tlie  twelfth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Eighth 
Congress,  on  the  12th  of  December,  1803,  in  lieu  of  the  original  third 
paragraph  of  the  first  section  of  the  second  article ;  and  was  declared 
in  a  proclamation  of  the  Secretary  of  State,  dated  the  25th  of  Septem- 
ber, 1804,  to  have  been  ratified  by  the  legislatures  of  three-fourths  of 
the  States. 


THE    CONSTITUTION  379 

whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
state  with  themselves ;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of 
the  number  of  votes  for  each,  which  lists  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  gov- 
ernment of  the  United  States,  directed  to  the  President 
of  the  Senate;  —  The  President  of  the  Senate  shall,  in 
presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted ;  —  The  person  having  the  greatest  number  of 
votes  for  President,  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the 
person  having  the  highest  numbers  not  exceeding  three 
on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot, 
the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the 
states,  and  a  majority  of  all  the  states  shall  be  necessary 
to  a  choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  Presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  —  The  person  having  the 
greatest  number  of  votes  as  Vice-President,  shall  be  the 
Vice-President,  if  such  number  be  a  majority  of  the  whole 
number  of  Electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list, 
the  Senate  shall  choose  the  Vice-President ;  a  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole 
number  of  Senators,  and  a  majority  of  the  whole  number 
shall  be  necessary  to  a  choice.  But  no  person  constitu- 
tionally ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States. 


38o  APPENDIX 


ARTICLE    XIII.* 

Section  i.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

Dred  Scott  v.  Sanford,  19  How.,  393;  White  v.  Hart,  13  Wall.,  646; 
Osborn  v.  Nicholson,  13  Wall.,  654  ;  Slaughterhouse  Cases,  16  Wall.,  36; 
Ex  parte  Virginia,  100  U.  S.,  339;  Civil  Rights  Case,  109  U.  S.,  3. 

ARTICLE    XlV.t 

Section  i.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 

*  The  thirteenth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Thirty-eighth 
Congress,  on  the  ist  of  February,  1S65,  and  was  declared,  in  a  proclama- 
tion of  the  Secretary  of  State,  dated  the  i8th  of  December,  1865,  to  have 
been  ratified  l)y  the  legislatures  of  twenty-seven  of  the  thirty-six  States, 
viz:  Illinois,  Rhode  Island,  Michigan,  Maryland,  New  York,  West  Vir- 
ginia, Maine,  Kansas,  Massachusetts,  Pennsylvania,  Virginia,  Ohio, 
Missouri,  Nevada,  Indiana,  Louisiana,  Minnesota,  Wisconsin,  Vermont, 
Tennessee,  Arkansas,  Connecticut,  New  Hampshire,  South  Carolina, 
Alabama,   North  Carolina,  and  Georgia. 

t  The  fourteenth  amendment  to  tlie  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Thirty-ninth 
Congress,  on  the  i6th  of  June,  1S66.  On  the  21st  of  July,  1868,  Congress 
adopted  and  transmitted  to  the  Department  of  State  a  concurrent  reso- 
lution declaring  that  "  the  legislatures  of  the  States  of  Connecticut,  Ten- 
nessee, New  Jersey,  Oregon,  Vermont,  New  York,  Ohio.  Illinois,  West 
Virginia,  Kansas,  Maine,  Nevada,  Missouri,  Indi.-ina,  Minnesota,  New 
Hampshire,  Massachusetts,  Nebraska,  Iowa,  Arkansas,  Florida,  North 
Carolina,  Alabama,  South  Carolina,  and  Louisiana,  being  ihrce-fourths 
and  mure  of  the  several  States  of  the  Union,  have  ratified  the  fourteenth 
article  of  amendment  to  the  Constitution  of  the  United  States,  duly  pro- 
posed by  two-thirds  of  each  House  of  the  Thirty-ninth  Congress:  There- 
fore Resolved,  That  said  fourteenth  article  is  hercliy  dedarecl  to  be  a  p:\rt 
of  the  Constitution  of  the  United  States,  and  it  shall  be  dulv  promulgated 
as  such  by  the  Secretary  of  State."  The  Secretary  of  State  accordingly 
issued  a  proclamation,  dated  the  28th  of  July,  1S68,  declaring  that  the 
proposed  fourteenth  amendment  had  been  ratified,  in  the  manner  hereafter 
mentioned,  by  the  legislatures  of  thirty  of  the  thirty-six  States,  viz:  Con- 
necticut, June  30.  1S66;  New  Hampshire,  July  7,  1866;  Tennessee,  July 
19,  1866;  New  Jersey,  September  11,  1866  (and  the  legislature  of  the 


THE    CONSTITUTION  381 

citizens  of  the  United  States  and  of  the  State  wherein  they 
reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or- immunities  of  citizens  of 
the  United  States ;  nor  shall  ajiy  State  deprive  any  person 
of  life,  liberty,  or  property,  without  due  process  of  law ; 
nOr 'deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

Strauder  v.  West  Virginia,  loo  U.  S.,  303;  Virginia  v.  Rivers,  100 
U.  S.,  313 ;  Ex  parte  Virginia,  100  U.  S.,  339  ;  Missouri  v.  Lewis,  loi  U.  S., 
22  ;  Civil  Rights  Cases,  109  U.  S.,  3 ;  Louisiana  v.  New  Orleans,  109  U  S., 
285;  Hurtado  7'.  California,  no  U.  S.,  516;  Hagar  i'.  Reclamation  Uist., 
Ill  U.  S.,  701 ;  Elk  z/.  Wilkins,  112  U.  S-,  94 ;  Head  z/.  Amoskeag  Mfg. 
Co.,  113  U.  S.,  9;  Barbier  v.  Connolly,  113  U.  S.,  27  ;  Provident  Listitu- 
tion  V.  Jersey  City,  113  U.  S.,  506;  Soon  Hing  v.  Crowley,  113  U.  S.,  703  ; 
Wurts  V.  Hoagland,  114  U.  S.,  606;  Ky.  R.  Rd.  Tax  Cases,  1 15  U.  S.,  321  ; 
Campbell  v.  Holt,  115  U-  S.,  620 ;  Presser  v.  Illinois,  116  U.  S.,  252  ; 
Stone  V.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.,  307;  Arrowsmith  v. 
Harmoning,  118  U.  S.,  194;  Yick  Wo  v.  Hopkins,  118  U.  S.,  356;  Santa 
Clara  Co.  v.  S.  Pacific  R.  Rd.,  1 18  U.  S.,  394 ;  Phila.  Fire  Assn.  v.  N.  Y., 
119  U.  S.,  no;  Schmidt  v.  Cobb,  119  U.  S.,  286;  Baldwin  v.  Prank,  ng 
U.S.,  678;  Hayes  z'.  Missouri,  120  U.  S.,  68  ;  Church  z'.  Kelsey,  121  U.S., 
282;  Pembina  Mining  Co.  z'.  Penna.,  125  U.  S.,  181  ;  Spencer  z/.  Merchant, 
125  U.  S.,  345;  Dow  V.  Beidelman,  125  U.  S.,  680  ;  Bank  of  Redemption 
».  Boston,  125  U.  S.,  60;  Ro  Bards  z'.  Lamb,  127  U.  S.,  58  ;  Mo.  Pac.  Rwy. 
Co.  V.  Mackey,  127  U.  S.,  205  ;  Minneapolis  and  St.  Louis  Rwy.  v.  Her- 
rick,  127  U.  S.,  210;  Powell  v.  Penna.,  127  U.  S.,  678;  Kidd  v.  Pearson, 
128  U.  S.,  I  ;  Nashville,  Chattanooga,  &c.,  Rwy.  v.  Alabama,  12S  U.  S., 
96;  Walston  V.  Navin,  128  U.  S.,  578;  Minneapolis  and  St.  Louis  Rwy. 
V.  IBeckwith,  129  U.  S.,  26;  Dent  v.  West  Va.  129  U.  S.,  114;  Huling  v. 


same  State  passed  a  resolution  in  April,  186S,  to  withdraw  its  consent  to 
it)  ;  Oregon,  September  19,  1866;  Vermont,  November  9,  1866;  Georgia 
rejected  it  November  13,  1S66,  and  ratified  it  July  21,  1868  ;  North  Caro- 
lina rejected  it  December  4,  1866,  and  ratified  it  July  4,  1868;  South 
Carolina  rejected  it  December  20, 1866,  and  ratified  it  July  9,  1S6S;  New 
York  ratified  it  January  10,  1867  ;  Ohio  ratified  it  January  11,  1S67  (and 
the  legislature  of  the  same  State  passed  a  resolution  in  January,  1S6S,  to 
withdraw  its  consent  to  it);  Illinois  ratified  it  January  15,  1S67  ;  West 
Virginia,  January  16,  1867;  Kansas,  January  18,  1867;  Maine,  January 
19,  1S67  ;  Nevada,  January  22,  1867  ;  Missouri,  January  26,  1867  ;  Indiana, 
January  20,  1S67  ;  Klinnesota,  February  i,  1867  ;  Rhode  Island,  February 
7,  1867  ;  Wisconsin,  February  13,  1867  ;  Pennsylvania,  February  13,  1867  ; 
Michigan,  February  15,  1S67  ;  Massachusetts,  March  20,  1867  ;  Nebraska, 
June  15,  1867;  Iowa,  April  3,  1868;  Arkansas,  April  6,  186S  ;  Florida, 
June  9, 1S68  ;  Louisiana,  July  9, 1868,  and  Alabama,  July  13, 1868.  Georgia 
again  ratified  the  amendment  P'ebruary  2,  1870.  Texas  rejected  it  Novem- 
ber I,  1866,  and  ratified  it  February  iS,  1870.  Virginia  rejected  it  January 
19,  1867,  aid  ratified  it  October  8,  1869.  The  amendment  was  rejected 
by  Kentucky  January  10,  1867  ;  by  Delaware  February  8,  1S67  ;  by  Mary- 
land March  23,  1S67,  and  was  not  afterwards  ratified  by  either  State. 


382  APPENDIX 

Kaw  Valley  Rwy.  and  Improvement  Co.,  130  U.  S.,  559;  Freeland  v. 
Williams,  131  U.  S.,  405  ;  Cross  v.  North  Carolina,  132  U.  S.,  131  ;  Pen- 
nie  V.  Reis,  132  U.  S.,  464;  Sugg  v.  Thornton,  132  U.  S.,  524;  Davis  v. 
Beason,  133  U.  S.,  333  ;  Ellenbecker  v.  Plymouth  Co.,  134  U.  S.,  31  ;  Bell 
Gap  R.  Rd.  Co.  v.  Penna.,  134  U.  S.,  232;  Chicago,  Milwaukee  &  bt. 
Paul  Rwy.  v.  Minnesota,  134  U.  S.,  418;  Home  Ins.  Co.  v.  N.  Y.,  134 
U.  S.,  594;  Louisville  &  Nashville  R.  Rd.  Co.  z/.  Woodson,  134  U.  S., 
614 ;  Home  Ins.  Co.  v.  N.  Y.,  134  U.  S.,  594  ;  Leisy  v.  Hardin,  135  U.  S., 
100;  In  re  Kemmler,  136  U.S.,436;  York  z^.  Te.xas,  137  U.  S.,  15 ;  Crow- 
ley V.  Christensen,  137  U.  S.,  89;  Wheeler  v  Jackson,  137  U.  S.,  245; 
Holden  v.  Minnesota,  137  U.  S.,  483;  In  re  Converse,  137  U.  S.,  624; 
Caldwell  z/.  Te.xas,  137  U.S.,  692  ;  Kauffman  v.  Wootters,  138  U.  S.,  285; 
Lesper  v.  Texas,  139  U.  S.,  462  ;  In  re  Manning,  139  U.  S.,  504;  Mabal  v. 
Louisiana,  139  U.  S.,  621  ;  In  re  Duncan,  139  U.  S.,  449;  In  re  Shibuya 
Jugiro,  139  U.  S.,  291 ;  Lent  v.  Tillson,  140  U.  S.,  316;  New  Orleans  v. 
N.  O.  Water  W'ks,  142  U.  S.,  79  ;  McElvaine  v.  Brush,  142  U.  S.,  155; 
Kaukauna  Water  Power  Co.  v.  Miss.  Canal  Co.,  142  U.  S.,  254;  Char- 
lotte, Augusta  &  Col.  R.  Rd.  Co.  v.  Gibbes,  142  U.  S.,  386;  Pacific  Ex. 
Co.  V.  Siebert,  142  U.  S.,  339;  Horn  Sdver  Mining  Co.  v.  N.  Y.,  143  U.  S., 
305;  Budd  V.  N.  Y.,  143  U.  S.,  517  ;  Schwab  v.  Berggren,  143  U.  S.,  442; 
Fielden  v.  Illinois,  143  U.  S.,  452  ;  N.  N.v.  Squire,  144  U.  S.,  175;  Brown 
V.  Smart,  144  U.  S.,  454;  McPherson  v.  Blacker,  146  U.  S.,  i  ;  Morley  v. 
Lake  Shore  &  Mich.  Southern  Ry.  Co.,  146  U.  S.,  162;  Ilallinger  z/. 
Davis,  146  U.  S.,  314;  Yesler  v.  Washington  Harbor  Line  Comsrs.,  146 
U.  S.,  646;  Butler  v.  Goreley,  146  U.  S.,  303;  Southern  Pacific  Co.  v. 
Denton,  146  U.  S.,  202;  Thorington  v.  Montgomery,  147  U.  S.,490;  Giozza 
V.  Tiernan,  148  U.  S.,  657;  Paulsen  v.  Portland,  149  U.  S.,  30;  Minn.  & 
St.  L.  Rwy.  Co.  V.  Emmons,  149  U.  S.,  364;  Columbus  So.  Rwy.  Co.  v. 
Wright.  151  U.S., 470;  In  re  Frederick,  149  U.  S.,  70  ;  McNulty  z/.  Calif., 
149  U.  S.,  645;  Leesz/.  U.  S.,  150  U.  S.,  476;  Lawton  z'.  Steele,  152  U.  S., 
133;  Montana  Co.  v.  St.  Louis  Mining  Co.,  152  U.  S.,  160;  Duncan  v. 
Missouri,  152  U.  S.,  377  ;  McKane  v.  Durston,  153  U.  S.,  684  ;  Marchant 
V.  Penna.  R.  R.  Co.,  153  U.  S.,  380;  Brass  z/.  Stoeser,  153  U.  S.,391  ;  Scott 
V.  McNeal,  154  U.  S.,  34;  Reagan  v.  Far.  Loan  &  Trust  Co.,  154  U.  S., 
362;  P.,  C,  C.  &  St.  L.  R.  R.  Co.,  V.  Backus,  154  U.  S.,  421  ;  Interstate 
Com.  Comsn.  v.  Brimson,  154  U.  S.,  447  ;  Reagan  v.  Mercantile  Trust 
Co.,  154  U.  S.,  447;  Pearce  v.  Texas,  155  U.  S.,  311;  Pittsburgh  &  So. 
Coal  Co.  V.  La.,  156  U.  S.,  590;  Andrews  v.  Swartz,  156  U.  S.,  272  ;  St. 
L.  &  S.  F.  Rwy.  Co.  v.  Gill,  156  U.  S.,  649;  Stevens  admr.  v.  Nichols, 

157  U.  S.,  370;  Bergemann  v.  Becker,  157  U.  S.,  655;  Quarles  v.  Butler, 

158  U.  S.,  532;  Gray  v.  Connecticut,  159  U.  S.,  74  ;  Central  Land  Co.  v. 
Laidley,  159^  U.  S.,  103;  Moore  v.  Missouri,  159  U.  S.,  673;  Winona  & 
St.  Peter  Land  Co.  v.  Minn.  159  U.  S.,  528. 

Section  2.  Representatives  shall  be  apportioned  among 
the  several  States  according -to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State, 
excluding  Indians  not  taxed.  But  when  the  right  to 
vote  at  any  election  for  the  choice  of  electors  for  President 
and  Vice-President  of  the  United  States,  Representatives 
in   Congress,   the   Executive   and   Judicial   officers   of   a 


THE   CONSTITUTION  383 

State,  or  the  members  of  the  Legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation 
in  rebellion,  or  other  crime,  the  basis  of  representation 
therein  shall  be  reduced  in  the  proportion  which  the  num- 
ber of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress, 'of  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under  the 
United  States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  or  as  a  member  of  Congress,  or  as  an 
officer  of  the  United  States,  or  as  a  member  of  any 
State  legislature,  or  as  an  executive  or  judicial  officer 
of  any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may  by  a  vote  of  two-thirds  of 
each  House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any  State 
shall  assume  or  pay  any  debt  or  obligation  incurred  in 
aid  of  insurrection  or  rebellion  against  the  United  States, 
or  any  claim  for  the  loss  or  emancipation  of  any  slave; 
but  all  such  debts,  obligations  and  claims  shall  be  held 
illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

Crandall  v.  the  State  of  Nevada,  6  Wall.,  35  ;  Paul  v.  Virginia,  8 
Wall.,  168;  Ward  v.  Maryland,  12  Wall., 418;  Slaughterhouse  Cases,  16 
Wall.,  36;  Bradwell  v.  The  State,  16  Wall.,  130;  Rartemeyer  v.  Iowa, 
18  Wall.,  129;  Minor?'.  Happersett,  21  Wall.,  162;  Walker  t'.  Sauvinet, 
92  U.  S.,  90  ;  Kennard  v.  Louisiana,  ex  rel.  Morgan,  92  U.  S.,  480 ;  United 
States  V.  Cruikshank,  92  U.  S.,  542  ;  Munn  v.  Illinois,  94  U.  S.,  113. 


384  APPENDIX 


ARTICLE    XV.* 

Section  i.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude  — 

Section  2.  The  Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation. 

United  States  v.  Reese  et  al.,  92  U.  S.,  214;  United  States  v.  Cruik- 
shank  et  al.,  92  U.  S.,  542;  Ex  parte  Yarborough,  110  U.  S.,  651 ;  McPher- 
son  V.  Blacker,  146  U.  S.,  i. 


*  The  fifteenth  amendment  to  the  Constitution  of  the  United  States 
was  proposed  to  the  legislatures  of  the  several  States  by  the  Fortieth 
Congress  on  the  27th  of  February,  i86g,  and  was  declared,  in  a  procla- 
mation of  the  Secretary  of  State,  dated  March  30,  1870,  to  have  been 
ratified  by  the  legislatures  of  twenty-nine  of  the  thirty-seven  States.  The 
dates  of  these  ratifications  (arranged  in  the  order  of  their  reception  at 
the  Department  of  State)  were  :  From  North  Carolina,  March  5,  1869 
West  Virginia,  March  3,  1869;  Massachusetts,  March  9-12,  1S69;  Wis 
consin,  March  9,  1869;  Maine,  March  12,  1S69;  Louisiana,  March  5,  1869 
Michigan,  March  8, 1869;  South  Carolina,  March  16,  1S69;  Pennsylvania 
March  26,  1869;  Arkansas,  March  30,  1869;  Connecticut,  May  19,  1869 
Florida,  June  15,  1869;  Illinois,  March  5,  1869;  Indiana,  May  13-14, 
1869;  New  York,  March  17-April  14,  1869  (and  the  legislature  of  the 
same  State  passed  a  resolution  January  5,  1S70,  to  withdraw  its  consent 
toil);  New  Hampshire,  July  7,  1869;  Nevada,  March  1,1869;  Vermont, 
October  21,  1869;  Virginia,  October  8,  1869;  Missouri,  January  10,  1870; 
Mississippi,  January  15-17,  1870;  Ohio,  January  27,  1870;  Iowa,  Feb- 
ruary 3,  1870;  Kansas,  January  18-19,  1870;  Minnesota,  February  19, 
1870;  Rhode  Island,  January  18,  1S70;  Nebraska,  February  17,  1870; 
Texas,  I-'ebruary  18,  1870.  The  State  of  Georgia  also  ratified  the  amend- 
ment February  2,  1870. 


APPENDIX  384' 


ARTICLE    XVI.* 


Section  i.  The  Congress  shall  have  power  to  lay  and 
collect  taxes  on  incomes,  from  whatever  source  derived, 
without  apportionment  among  the  several  States,  and 
without  regard  to  any  census  or  enumeration. 


ARTICLE    XVII.t 

Section  i.  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  elected  by 
the  people  thereof,  for  six  years ;  and  each  Senator  shall 
have  one  vote.  The  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  State  legislatures. 

Section  2.  When  vacancies  happen  in  the  represen- 
tation of  any  $tate  in  the  Senate,  the  executive  authority 
of  such  State  shall  issue  writs  of  election  to  fill  such 
vacancies :  Provided,  That  the  legislature  of  any  State 
may  empower  the  executive  thereof  to  make  temporary 
appointments  until  the  people  fill  the  vacancies  by  elec- 
tion as  the  legislature  may  direct. 

*  Article  XVI  passed  the  Senate,  July  5,  1909;  passed  the  House, 
July  12,  1909;  proclaimed  by  Philander  C.  Knox,  as  having  become 
valid  as  part  of  the  Constitution,  February  25,  1913;  was  ratified  by  the 
States  as  follows:  Alabama,  August  17,  1909;  in  1910,  by  Kentucky, 
February  8  (or  9);  South  Carolina,  February  19;  Illinois,  March  i; 
Mississippi,  March  7;  Oklahoma,  March  14;  Maryland,  April  8; 
Georgia,  August  3;  Texas,  August  17;  in  1911,  by  Ohio,  January  19; 
Idaho,  January  20  ;  Oregon,  January  23  ;  Washington,  January  26 ;  Mon- 
tana, California,  January  31  ;  Indiana,  February  6;  Nevada,  February  8; 
Nebraska,  North  Carolina,  February  1 1  ;  Colorado,  February  20 ;  North 
Dakota,  February  21;  Michigan,  February  23;  Iowa,  February  27; 
Missouri,  March  16;  Maine,  March  31  ;  Tennessee,  April  7;  Arkansas, 
April  22  ;  Wisconsin,  May  26;  New  York,  July  12;  in  1912,  by  South 
Dakota,  February  3;  Arizona,  April  9;  Minnesota,  June  11  ;  in  1913,  by 
Delaware,  Wyoming,  February  3  ;  New  Jersey,  New  Mexico,  February  5. 
Rejected  by  Rhode  Island,  April  29,  1910;  New  Hampshire,  March  2, 
1911  (Senate)  ;  Utah,  March  9,  191 1  (House). 

t  Article  XVII  passed  the  House,  April  13,  191 1  ;  passed  the  Senate, 
June  12,  191 1  ;  proclaimed  by  William  J.  Bryan,  Secretary  of  State,  as  hav- 
ing become  valid  as  part  of  the  Constitution,  May  31,  1913,  having 
been  ratified  by  the  following  States  :  in  191 2,  by  Massachusetts,  May  22; 


384**  APPENDIX 

Section  3.  This  amendment  shall  not  be  so  construed 
as  to  affect  the  election  or  term  of  any  Senator  chosen 
before  it  becomes  valid  as  part  of  the  Constitution. 

Arizona,  June  3;  Minnesota,  June  10;  in  191 3,  by  New  York,  January  15  ; 
Kansas,  January  17;  Oregon,  January  23;  North  Carolina,  January  25; 
Michigan,  California,  January  28 ;  Idaho,  January  31  ;  West  Virginia,  Feb- 
uary  4  ;  Nebraska,  February  5  ;  Iowa,  Februai7  6 ;  Washington,  Montana, 
Texas,  February  7  ;  Wyoming,  February  11 ;  Illinois,  Colorado,  February 
13;  North  Dakota,  February  18;  Nevada,  Vermont,  February  19; 
Maine,  February  20;  New  Hampshire,  February  21;  Oklahoma,  Feb- 
ruary 24;  Ohio,  February  25;  South  Dakota,  February  27;  Indiana, 
March  6;  Missouri,  March  7;  New  Jersey,  March  18  ;  Tennessee,  April 
i;  Arkansas,  April  14;  Pennsylvania,  Connecticut,  April  15;  Wisconsin, 
May  9. 


THE    CONSTITUTION  385 


RATIFICATIONS    OF    THE    CONSTITUTION. 

The  Constitution  was  adopted  by  a  convention  of  the 
States  September  17,  1787,  and  was  subsequently  ratified 
by  the  several  States,  in  the  following  order,  viz : 

Delaware,  December  7,  1787. 
Pennsylvania,  December  12,  1787. 
New  Jersey,  December  18,  1787. 
Georgia,  January  2,  1788. 
Connecticut,  January  9,   1788. 
Massachusetts,  February  6,  1788. 
Maryland,  April  28,  1788. 
South  Carolina,  May  2.2^,  1788. 
New  Hampshire,  June  21,  1788. 
Virginia,  June  26,  1788. 
New  York,  July  26,  1788. 
North  Carolina,  November  21,  1789. 
Rhode  Island,  May  29,  1790. 

The  State  of  Vermont,  by  convention,  ratified  the  Con- 
stitvUion  on  the  loth  of  January,  1791,  and  was,  by  an 
act  of  Congress  of  the  i8th  of  February,  1791,  "  received 
and  admitted  into  this  Union  as  a  new  and  entire  member 
of  the  United  States  of  America." 


■RATIFICATIONS    OF   THE    AMENDMENTS    TO 
THE    CONSTITUTION. 

The  first  ten  of  the  preceding  articles  of  amendment 
(with  two  others  which  were  not  ratified  by  the  requisite 
number  of  States)  were  submitted  to  the  several  State 
legislatures  by  a  resolution  of  Congress  which  passed  on 
the  25th  of  September,  1789,  at  the  first  session  of  the 

25 


386  APPENDIX 

First  Congress,  and  were  ratified  by  the  legislatures  of 
the  following  States : 

New  Jersey,  November  20,  1789. 
Maryland,  December  19,  1789. 
North  Carolina,  December  22,  1789. 
South  Carolina,  January  19,  1790. 
New  Hampshire,  January  25,  1790. 
Delaware,  January  28,  1790. 
Pennsylvania,  March  10,  1790. 
New  York,  March  2^,  1790. 
Rhode  Island,  June  15,  1790. 
Vermont,  November  3,  1791. 
Virginia,  December  15,  1791. 

The  acts  of  the  legislatures  of  the  States  ratifying 
these  amendments  were  transmitted  by  the  governors  to 
the  President,  and  by  him  communicated  to  Congress. 
The  legislatures  of  Massachusetts,  Connecticut,  and 
Georgia  do  not  appear  by  the  record  to  have  ratified 
them. 

The  eleventh  article  was  submitted  to  the  legislatures 
of  the  several  States  by  a  resolution  of  Congress  passed 
on  the  5th  of  March,  1794,  at  the  first  session  of  the 
Third  Congress;  and  on  the  8th  of  January,  1798,  at 
the  second  session  of  the  Fifth  Congress,  it  was  declared 
by  the  President,  in  a  message  to  the  two  Houses  of 
Congress,  to  have  been  adopted  by  the  legislatures  of 
three-fourths  of  the  States,  there  being  at  that  time  six- 
teen States  in  the  Union. 

The  twelfth  article  was  submitted  to  the  legislatures 
of  the  several  States,  there  being  then  seventeen  States, 
by  a  resolution  of  Congress  passed  on  the  12th  of  Decem- 
ber, 1803,  at  the  first  session  of  the  Eighth  Congress,  and 
was  ratified  by  the  legislatures  of  three-fourths  of  the 
States  in  1804,  according  to  a  proclamation  of  the  Secre- 
tary of  State  dated  the  25th  of  September,  1804. 

The  thirteenth  article  was  submitted  to  the  legislatures 
of  the  several  States,  there  being  then  thirty-six  States, 
by  a  resolution  of  Congress  passed  on  the  ist  of  February, 
1865,  at  the  second  session  of  the  Thirty-eighth  Congress, 


THE   CONSTITUTION  387 

and  was  ratified,  according  to  a  proclamation  of  the 
Secretary  of  State  dated  December  18,  1865,  by  the  legis- 
latures of  the  following  States: 

Illinois,  February  i,  1865. 
Rhode  Island,  February  2,   1865. 
Michigan,  February  2,  1865. 
Maryland,  February  3,  1865. 
New  York,  February  3,  1865. 
West  Virginia,  February  3,  1865. 
Maine,  February  7,  1865. 
Kansas,  February  7,  1865. 
Massachusetts,  February  8,  1865. 
Pennsylvania,  February  8,  1865. 
Virginia,  February  9,  1865. 
Ohio,  February  10,  1865. 
Missouri,  February  10,  1865. 
Indiana,  February  16,  1865. 
Nevada,  February  16,  1865. 
Louisiana,  February  17,  1865. 
Minnesota,  February  23,  1865. 
Wisconsin,  March  i.  1865. 
Vermont,  March  9,  1865. 
Tennessee,  April  7,  1865. 
Arkansas,  April  20,  1865. 
Connecticut,  May  5,  1865. 
New  Hampshire,  July  i,  1865. 
South  CaroHna,  November  13,  1865. 
Alabama,  December  2,  1865. 
North  Carolina,  December  4,  1865. 
Georgia,  December  9,  1865. 

The  following  States  not  enumerated  in  the  proclama- 
tion of  the  Secretary  of  State  also  ratified  this  amendment : 

Oregon,  December  11,  1865. 
California,  December  20,  1865. 
Florida,  December  28,  1865. 
New  Jersey,  January  23,  1866. 
Iowa,  January  24,  1866. 
Texas,  February  18,  1870. 


388  APPENDIX 

Mississippi  rejected  the  amendment,  December  4,  1865 ; 
Kentucky,  February  2.2,  1865;  Delaware,  February  7, 
1867;    Maryland,  March  23,  1867. 

The  fourteenth  article  was  submitted  to  the  legislatures 
of  the  several  States,  there  being  then  thirty-seven  States, 
by  a  resolution  of  Congress  passed  on  the  i6th  of  June, 
1866,  at  the  first  session  of  the  Thirty-ninth  Congress, 
and  was  ratified,  according  to  a  proclamation  of  the  Sec- 
retary of  State  dated  July  28,  1868,  by  the  legislatures  of 
the  following  States : 

Connecticut,  June  30,  1866. 
New  Hampshire,  July  7,  1866. 
Tennessee,  July  19,  1866. 

*  New  Jersey,  September  11,  1866. 
t  Oregon,  September  19,  1866. 
Vermont,  November  9,  1866. 
New  York,  January  10,  1867. 

X  Ohio,  January  11,  1867. 
Illinois,  January  15,  1867. 
West  Virginia,  January  16,  1867. 
Kansas,  January  18,  1867. 
]\Iaine,  January  19,  1867. 
Nevada,  January  22,  1867. 
Missouri,  January  26,  1867. 
Indiana,  January  29,  1867. 
Minnesota,  February  i,  1867. 
Rhode  Island,  February  7,  1867. 
Wisconsin,  February  13,  1867. 
Pennsylvania.  February  13,  1867. 
Michigan,  February  15,  1867. 
Massachusetts,  March  20,  1867, 
Nebraska,  June  15,  1867. 
Iowa,  April  3,  1868. 
Arkansas,  April  6,  1868. 
Florida,  June  9,  1868. 

*  New  Jersey  withdrew  her  consent  to  the  ratification  March  27, 
1868. 

t  Oregon  withdrew  her  consent  to  the  ratification  October  15.  1S68. 
\  Ohio  withdrew  her  consent  to  the  ratification  January  15,  1868. 


THE   CONSTITUTION  389 

*  North  Carolina,  July  4,  1868. 
Louisiana,  July  9,  1868. 

*  South  Carolina,  July  9,  1868. 
Alabama,  July  13,  1868. 

*  Georgia,  July  21,  1868. 

*  The  State  of  Virginia  ratified  this  amendment  on  the 
8th  of  October,  1869;  Mississippi,  January  17,  1870; 
Texas,  February  18,  1870,  —  subsequent  to  the  date  of  the 
proclamation  of  the  Secretary  of  State. 

The  States  of  Delaware,  Maryland  and  Kentucky,  re- 
jected the  amendment. 

The  fifteenth  article  was  submitted  to  the  legislatures  of 
the  several  States,  there  being  then  thirty-seven  States, 
by  a  resolution  of  Congress  passed  on  the  27th  of  Feb- 
ruary, 1869,  at  the  first  session  of  the  Forty-first  Congress ; 
and  was  ratified,  according  to  a  proclamation  of  the 
Secretary  of  State  dated  March  30,  1870,  by  the  legis- 
latures of  the  following  States : 

Nevada,  March  i,  1869. 
West  Virginia,  March  3,  1869. 
North  Carolina,  March  5,  1869. 
Louisiana.  March  5,  1869. 
Illinois,  March  5,  1869. 
Michigan,  March  8,  1869. 
Wisconsin,  March  9,   1869. 
Massachusetts,  March  12,  1869. 
Maine,  March  12,  1869. 
South  Carolina,  March  16,  1869. 
Pennsylvania,  March  26,  1869. 
Arkansas,  March  30,  1869. 
t  New  York,  April  14,  1869. 
Indiana,  May  14,  1869. 
Connecticut,  May  19,  1869. 
Florida,  June  15,  1869. 
New  Hampshire,  July  7,  1869. 
Virginia,  October  8,  1869. 

*  North  Carolina,  South  Carolina,  Georgia,  and  Virginia  had  pre- 
viously rejected  the  amendment. 

t  New  York  withdrew  her  consent  to  the  ratification  January  5,  1870. 


390  APPENDIX    ' 

Vermont,  October  21,  1869. 
Alabama,  November  24,  1869. 
Missouri,  January   10,   1870. 
Mississippi,  January  17,  1870. 
Rhode  Island,  January  18,  1870. 
Kansas,  January  19,  1870. 
*  Ohio,  January  27,  1870. 
Georgia,  February  2,  1870. 
Iowa,  February  3,  1870. 
Nebraska,  February  17,  1870. 
Texas,  February  18,  1870. 
Minnesota,  February  19,  1870. 

t  The  State  of  New  Jersey  ratified  this  amendment  on 
the  2 1st  of  February,  1871,  subsequent  to  the  date  of  the 
proclamation  of  the  Secretary  of  State. 

The  States  of  California,  Delaware,  Kentucky,  Mary- 
land,  Oregon,  and  Tennessee  rejected  this  amendment. 

*  Ohio  had  previously  rejected  the  amendment  May  4,  1869. 
t  New  Jersey  had  previously  rejected  the  amendment. 


I 


INDEX  TO  THE  CONSTITUTION  OF  THE 
UNITED  STATES  AND  AMENDMENTS 
THERETO 

A. 

Art.    Sec.   CI.   Page 

Abridged.     The  privileges  or  immunities  of  citizens  of 

the  United  States  shall  not  be.     [Amendments]     14       i     —     380 

Absent  members,  in  such  manner  and  under  such  penal- 
ties as  it  may  provide.  Each  House  is  author- 
ized to  compel  the  attendance  of I       5       i     350 

Accounts  of  receipts  and  expenditures  of  public  money 
shall  be  published  from  time  to  time.  A  state- 
ment of  the I       9      7     35S 

Accusation.  In  all  criminal  prosecutions  the  accused 
shall  be  informed  of  the  cause  and  nature  of  the. 
[Amendments] 6    —    —    376 

Accused  shall  have  a  speedy  public  trial.     In  all  crimi- 
nal prosecutions  the.     [Amendments]  ....       6    —     —     376 
He  shall  be  tried  by  an  impartial  jury  of  the  State 
and  district  where   the  crime  was   committed. 

[Amendments]         6    —    —    376 

He  shall  be  informed  of  the  nature  of  the  accusa- 
tion.    [Amendments] 6    —     —     376 

He  shall  be  confronted  with  the  witnesses  against 

him.     [Amendments] 6     —    —     376 

He  shall  have  compulsory  process  for  obtaining 

witnesses  in  his  favor.     [Amendments]     ...       6    —     —     376 
He  shall  have  the  assistance  of  counsel  for  his 

defense.     [Amendments] 6     —     —     376 

Actions  at  common  law  involving  over  twenty  dollars 

shall  be  tried  by  jury.     [Amendments]     ...       7     —    —     377 

Acts,  records,  and  judicial  proceedings  of  another 
State.  Full  faith  and  credit  shall  be  given  in 
each  State  to  the 4       i     —     368 

Acts.  Congress  shall  prescribe  the  manner  of  prov- 
ing such  acts,  records,  and  proceedings     ...       4       i     —     368 

Adjourn  from  day  to  day.     A  smaller  number  than  a 

quorum  of  each  House  may i       5       i     350 

Adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  they  shall  be  sitting. 
Neither  House  shall,  during  the  session  of  Con- 
gress, without  the  consent  of  the  other     .     .     .       i       5      4     350 


392        IxNDEX    TO    THE    CONSTITUTION 

Art.   Sec.   CI.   Page 

Adjournment,  the  President  may  adjourn  them  to  such 
time  as  he  shall  think  proper.  In  case  of  dis- 
agreement between  the  two  Houses  as  to     .     .       2       3     —     362 

Admiralty   and    maritime    jurisdiction.     The    judicial 

power  shall  extend  to  all  cases  of 3       2       i     365 

Admitted  by  the  Congress  into  this  Union,  but  no  new 
.State  shall  be  formed  or  erected  within  the  juris- 
diction of  any  other  State.  New  States  may  be  4  3  i  369 
Nor  shall  any  State  be  formed  by  the  junction  of 
two  or  more  States,  or  parts  of  States,  without 
the  consent  of  the  legislatures  and  of  Congress.       431     369 

Adoption  o{  \.\\^  Constitution  shall  be  valid.  All  debts 
and  engagements  contracted  by  the  Confedera- 
tion and  before  the 6    —       I     371 

Advice  and  consent  of  the  Senate.  The  President 
shall  have  power  to  make  treaties  by  and  with 

the 2       2       2     364 

To  appoint  ambassadors  or  other  public  ministers 

and  consuls  by  and  with  the 2       2       2     364 

To  appoint  all  other  ofificers  of  the  United  States 

not  herein  otherwise  provided  for  by  and  with  the       222     364 

Affirmation.     Senators   sitting   to   try   impeachments 

shall  be  on  oath  or I       3       6     349 

To  be  taken  by  the  President  of  the  United  States. 

Form  of  the  oath  or 2       i       7     363 

No  warrants  shall  be  issued  but  upon  probable 

cause  and  on  oath  or.     (Amendments]     ...       4     —    —     375 
To  support  the  Constitution.     Senators  and  Rep- 
resentatives,  members    of    State    legislatures, 
executive  and  judicial  ofificers,  both  State  and 
Federal,  shall  be  bound  by  oath  or 6    —       3     37^ 

Age.     No  person  shall  be  a  Representative  who  shall 

not  have  attained  twenty-five  years  of  ...     .       i       2       2     348 
No  person  shall  be  a  Senator  who  shall  not  have 

attained  thirty  years  of I       3       3     349 

Agreement  or  compact  with  another  State  without  the 
consent  of  Congress.  No  State  shall  enter  into 
any I     10      3     361 

Aid  and  comfort.  Treason  against  the  United  States 
shall  consist  in  levying  war  against  them,  ad- 
hering to  their  enemies,  and  giving  them  •••331     368 

Alliance  or  confederation.     No  State  shall  enter  into 

any  treaty  of i     10       i     358 

Ambassadors,  or  other  public  ministers  and  consuls. 

The  President  may  appoint 2       2       2     364 

The  judicial  i^ower   of   the    United  States  shall 

extend  to  all  cases  affecting 2       2       i     363 

Amendments  to  the  Constitution.  Whenever  two-thirds 
of  both  Houses  shall  deem  it  necessary.  Con- 
gress shall  propose 5     —    —     375 

On  application  of  the  legislatures  of  two-thirds  of 
the  States,  Congress  shall  call  a  convention  to 
propose 5    —    —    375 


OF   THE   UNITED    STATES  393 

Art.    Sec.    CI.    Page 

Amendments  to  the  Constitution.  Shall  be  valid  when 
ratified  by  the  legislatures  of,  or  by  conventions 
in,  three-fourths  of  the  States 5     —    —     375 

Answer  for  a  capital  or  infamous  crime  unless  on  pre- 
sentment of  a  grand  jury.     No  person  shall  be 

held  to.     [Amendments] 5     —    —     375 

Except  in  cases  in  the  land  or  naval  forces,  or  in 
the  militia  when  in  actual  service.  [Amend- 
ments]   •       5  375 

Appellate  jurisdiction  both  as  to  law  and  fact,  with 
such  exceptions  and  under  such  regulations  as 
Congress  shall  make.  In  what  cases  the  Su- 
preme Court  shall  have 3       2       2     367 

Application  of  the  legislature  or  the  executive  of  a 
State.  The  United  States  shall  protect  each 
State  against  invasion  and  domestic  violence 
on  the 4      4    —    37° 

Application  of  the  legislatures  of  two-thirds  of  the 
States,  Congress  shall  call  a  convention  for  pro- 
posing amendments  to  the  Constitution.  On 
the .-       5    —    —     375 

Appointment  of  officers  and  authority  to  train  the  militia 

reserved  to  the  States  respectively i       8     16     355 

Of  such  inferior  officers  as  they  may  think  proper 
in  the  President  alone.  Congress  may  by  law 
vest  the 2       2       2     364 

Appointme7its  in  the  courts  of  law  or  in  the  heads 
of  Departments.  Congress  may  by  law  vest 
the .••••.•       2       2       2     364 

Apportionnietit  of  representation  and  direct  taxation 
among  the  several  States.  Provisions  relating 
to   the.     [Repealed  by  section  2  of  fourteenth 

amendment] i       2       3     348 

Of   Representatives   among   the    several    States. 

Provisions  relating  to  the.     [Amendments]  .     .     14       2     —     382 

Appropriate  legislation.  Congress  shall  have  power  to 
make  all  laws  necessary  and  proper  for  carrying 
into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  the  Constitution  in  the 
Government   of  the   United   States,  or  in  any 

department  or  officer  thereof i       818     356 

Congress  shall  have  power  to  enforce  the  thir- 
teenth article,  prohibiting  slavery,  by.  [Amend- 
ments]     13       2     —     380 

Congress  shall  have  power  to  enforce  the  pro- 
visions of  the  fourteenth  article  by.  [Amend- 
ments]   14      5    —    3S3 

Congress  shall  have  power  to  enforce  the  pro- 
visions of  the  fifteenth  article  by.  [Amend- 
ments]     •.    •     '5       2     —    3S4 

Appropriation  of  money  for  raising  and  supporting 
armies  shall  be  for  a  longer  term  than  two 
years.     But  no i       812     355 


394        INDEX   TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 

Appropriations  made  by  law.  No  money  shall  be 
drawn  from  the  Treasury  but  in  consequence 
of I       9      7     358 

Approve  and  sign  a  bill  before  it  shall  become  a  law. 

The  President  shall /     • .  •       ^       ^       2     351 

He  shall  return  it  to  the  House  in  which  it  orig- 
inated, with  his  objections,  if  he  do  not    ...       i       7       2     351 

Armies,  but  no  appropriation  for  that  use  shall  be  for 
a  longer  term  than  two  years.  Congress  shall 
have  power  to  raise  and  support i       812     355 

Armies.  Congress  shall  make  rules  for  the  govern- 
ment and  regulation  of  the  land  and  naval 
forces .       I       8     14     355 

Ar7ns  shall  not  be  infringed.  A  well-regulated  militia 
being  necessary  to  the  security  of  a  free  State, 
the  right  of  the  people  to  keep  and  bear. 
[Amendments] 2     —    —     374 

Arrest  A\ix\w^  their  attendance  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning 
from  the  same.  Members  shall  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace, 
be  privileged  from i       6       i     350 

Arsenals.     Congress  shall  exercise  exclusive  authority 

over  all  places  purchased  for  the  erection  of     .       i       817     356 

Articles  exported  from  any  State.     No  tax  or  duty  shall 

be  laid  on.     ..'... i       9       5     357 

Arts  by  securing  to  authors  and  inventors  their  patent 
rights.  Congress  may  promote  the  progress  of 
science  and  the  useful i       8       8     354 

Assistance  of  counsel  for  his  defense.  In  all  crim- 
inal prosecutions  the  accused  shall  have  the. 
[Amendments] 6     —     —    376 

Assumption  of  the  debt  or  obligations  incurred  in  aid 
of  rebellion  or  insurrection  against  the  United 
States.  Provisions  against  the.  [Amend- 
ments]   •     '4       4     —     3S3 

Attainder  or  ex  post  facto  law  shall  be  passed.     No  bill 

of I       9      3    357 

Attainder,  ex  post  facto  \2.vi,  or  law  impairing  the  obli- 
gation of  contracts.  No  State  shall  pass  any 
bill  of I      10       I     358 

Attainder  of  treason  shall  not  work  corruption  of  blood 
or  forfeiture,  except  during  the  life  of  the  per- 
son attainted 3       3       2     368 

Attthors   and    inventors    the  exclusive   right  to  their  ,n 

writings  and  inventions.     Congress  shall  have 
power  to  secure  to i       8       8     354 

B. 

Bail.  Excessive  bail  shall  not  be  required,  nor  excess- 
ive fines  nor  cruel  and  unusual  punishments 
imposed.     [Amendments] 8    —    —     377 


OF   THE   UNITED    STATES  395 

Art.    Sec.   CI.    Page 
Ballot  for  President  and  Vice-President.     The  electors 

shall  vote  by.     [Amendments] 12     —    —    378 

Ballot.  If  no  person  have  a  majority  of  the  electoral 
votes  for  President  and  Vice-President,  the 
House  of  Representatives  shall  immediately 
choose  the  President  by.  [Amendments]  .  .  12  —  —  378 
Bankruptcies.  Congress  shall  have  power  to  pass  uni- 
form laws  on  the  subject  of i       8       4     354 

Basis   of  representation   among    the   several   States. 

Provisions  relating   to  the.     [Amendments]     .14       2     —     382 
Bear  arms  shall   not  be  infringed.     A  well-regulated 
militia  being  necessary  to  the  security  of  a  free 
State,   the   right   of   the   people   to  keep  and. 

[Amendments] 2     —    —     374 

Behavior.     The  judges  of  the  Supreme  and  inferior 

courts  shall  hold  their  offices  during  good  ..31  —  3615 
^/// (T/'fl/'/fl/W^r  or  ^j:/'t'j//?c^c  law  shall  be  passed.  No  i  9  3  357 
Bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 

obligation  of  contracts.    No  State  shall  pass  any       i     10       i     358 

Bills  of  credit.     No  State  shall  emit i     10       i     358 

Bills  for  raising  revenue  shall  originate  in  the  House 

of  Representatives.     All i       7       I     351 

Bills  which  have  passed  the  Senate  and  House  of 
Representatives  shall,  before  they  become  laws, 

be  presented  to  the  President I       7       2     351 

If  he  approve,  he  shall  sign  them  ;  if  he  disap- 
prove, he  shall  return  them,  with  his  objections, 
to  that  House  in  which  they  originated  ...  I  7  2  351 
Bills.  Upon  the  reconsideration  of  a  bill  returned  by 
the  President,  with  his  objections,  if  two-thirds 
of  each  House  agree  to  pass  the  same,  it  shall 

become  a  law i       72     351 

Upon  the  reconsideration  of  a  bill  returned  by  the 
President,  the  question  shall  be  taken  by  yeas 

and  nays : i       7       2     351 

Not  returned  by  the  President  within  ten  days 
(Sundays    excepted),    shall,    unless    Congress 

adjourn,  become  laws I       7       2     351 

Borrow  money   on   the  credit    of  the  United  States. 

Congress  shall  have  power  to i       8       2     352 

Bounties  and  pensions,  shall  not  be  questioned.  The 
validity  of  the  public  debt  incurred  in  sup- 
pressing insurrection  and  rebellion  against  the 
United  States,  including  the  debt  for.     [ Amend- 

me  ts] _. 14      4     —     3S3 

Breach  of  the  peace,  shall  be  privileged  from  arrest 
while  attending  the  session,  and  in  going  to  and 
returning  from  the  same.  Senators  and  Repre- 
sentatives, except  for  treason,  felony,  and  ..161  350 
Bribery,  or  other  high  crimes  and  misdemeanors. 
The  President,  Vice-President,  and  all  civil  offi- 
ers  shall  be  removed  on  impeachment  for  and 
conviction  of  treason 2       4    —     365 


396        INDEX    TO    THE    CONSTITUTION 


c. 

Art.  Sec.  CI.  Page 
Capital  or  otherwise  infamous  crime,  unless  on  indict- 
ment of  a  grand  jury,  except  in  certain  specified 

cases.     No  person  shall  be  held  to  answer  for 

a.     [Amendments] •       5     —  375 

Capitation  or  other  direct  tax  shall  be  laid  unless  in 

proportion  to  the  census  or  enumeration.  No  I  9  4  357 
Captures  on  land    and   water.     Congress  shall  make 

rules  concerning i       811     355 

Casting  vote.     The  Vice-President  shall  have  no  vote 

unless  the  Senate  be  equally  divided  ....  i  3  4  349 
Census   or  enumeration   of  the    inhabitants   shall   be 

made  within  three  years  after  the  first  meeting 

of  Congress,  and  within  every  subsequent  term 

of  ten  years  thereafter •     •       i       2       3     348 

Census  or  enumeration.     No  capitation  or  other  direct 

tax  shall  be  laid  except  in  proportion  to  the  .194  357 
Chief  Justice  shall  preside  when  the  President  of  the 

United  States  is  tried  upon  impeachment.  The  i  3  6  349 
Choosing  the  electors  and  the  day  on  which  they  shall 

give  their  votes,  which  shall  be  the  same  through- 
out the  United  States.  Congress  may  deter- 
mine the  time   of 2       i       3     362 

Citizen  of  the  United   States  at  the  adoption  of  the 

Constitution  shall  be  eligible  to  the  office  of 

President.  No  person  not  a  natural  born  ..214  362 
Citizen  of  the  United  States.     No  person  shall  be  a 

Senator  who  shall  not  have  attained  the  age  of 

thirty  years  and  been  nine  years  a i       3       3     349 

No  person  shall  be  a  Representative   who  shall 

not  have  attained  the  age  of  twenty-five  years 

and  been  seven  years  a I        2       2     348 

Citizenship.     Citizens  of  each  State  shall  be  entitled  to 

all  the  privileges  and  immunities  of  citizens  of 

the  several  States 4       2       i     369 

All  persons  born  or  naturalized  in   the   United 

States,  and  subject  to  the  jurisdiction  thereof, 

are  citizens  of  the  United  States  and  of  the  State 

in  which  they  reside.  [Amendments]  ...  14  I  —  380 
No  State  shall  make  or  enforce  any  law  which 

shall  abridge   the  privileges   or  immunities  of 

citizens  of  the  United  States.  [Amendments]  14  i  —  3S0 
Nor   shall  any  State   deprive   any   person  of   life, 

liberty,  or  property  without  due  process  of  law. 

[Amendments] 14       '     —     3^° 

Nor  deny  to  any  person  within  its  jurisdiction  the 

equal  protection  of  the  laws.  [Amendments]  14  i  —  380 
Citizens  or  subjects  of  a  foreign  state.     The  judicial 

power  of  the  United  States  shall  not  extend  to 

suits   in  law  or   equity  brought   against  one  of 

the   States  by  the  citizens  of  another  State,  or 

by.     [Amendments] ^     .     .     .     w     —    —     3 


OF    THE    UNITED    STATES 


397 


Civil  officers  of  the  United  States  shall,  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  and 
other  high  crimes  and  misdemeanors,  be  re- 
moved.    All 

Claims  of  the  United  States  or  any  particular  State  in 
the  Territory  or  public  property.  Nothing  in 
this  Constitution  shall  be  construed  to  preju- 
dice   

Classification  of  Senators.  Immediately  after  they 
shall  be  assembled  after  the  first  election,  they 
shall  be  divided  as  equally  as  may  be  into  three 

classes 

The  seats  of  the  Senators  of  the  first  class  shall 
be   vacated  at   the   expiration   of   the    second 


Art.   Sec.    CI.    Page 


Z^S 


3       2     370 


3       2     349 


year 


3  2  349 
The  seats  of  the  Senators  of  the  second  class  at 

the  expiration  of  the  fourth  year i       3       2     349 

The  Seats   of  the  Senators  of  the  third  class  at 

the  expiration  of  the  sixth  year i       3       2     349 

Coin  a  tender  in  payment    of  debts.     No  State  shall 

make  anything  but  gold  and  silver i     10       i     358 

Coin    money   and    regulate     the    value    thereof  and 

of  foreign  coin.      Congress   shall   have  power 

to I       8       5    354 

Coin  of  the  United  States.     Congress  shall  provide 

for  punishing  the  counterfeiting  the  securities 

and  current .       i       8      6     354 

Color,  or  previous  condition  of   servitude.     The  right 

of  citizens  of  the  United  States  to  vote  shall 

not  be  denied  or  abridged  by  the  United  States 

or  by  any  State  on  account  of  race.  [Amend- 
ments]  IS     1   —  384 

Comfort.      Treason  against    the    United  States  shall 

consist  in  levying  war  against  them,  and  giving 

their  enemies  aid  and 3       3       i     36S 

Comtnaitder  in  Chief  oi  the  Army  and  Navy,  and  of  the 

militia  when  in  actual  service.     The  President 

shall  be 2       2       i     3^3 

Commerce  with  foreign  nations,  among  the  States,  and 

with  Indian  tribes.     Congress  shall  have  power 

to  regulate i       8       3     352 

Commerce  or  revenue.     No  preference  shall  be  given 

to  the  ports  of  one  State  over  those  of  another 

by  any  regulation  of i       9      6    357 

Vessels  clearing  from  the  ports  of  one  State  shall 

not  pay  duties  in  those  of  another i       9      6     357 

Commissions  to  expire  at  the  end  of  the  next  session. 

The  President  may  fill  vacancies  that  happen 

in  the  recess  of  the  Senate  by  granting  ...  2  2  3  364 
Common   defense,   promote    the   general  welfare,  etc. 

To  insure  the.     [Preamble] —     —     —     347 

Common  defense  and  general  welfare.     Congress  shall 

have  power  to  provide  for  the i       8       i     351 


398 


INDEX    TO    THE    CONSTITUTION 


Art.   Sec.   CI.    Page 

Common  law,  where  the  amount  involved  exceeds 
twenty  dollars,  shall  be  tried  by  jury.     Suits 

at.     [Amendments] 7     —    —     377 

No  fact  tried  by  a  jury  shall  be  otherwise  re-exam- 
ined in  any  court  of  the  United  States  than  ac- 
cording to  the  rules  of  the.  [Amendments]  .  7  —  —  377 
Compact  with  another  State.  No  State  shall,  without 
the  consent  of  Congress,  enter  into  any  agree- 
ment or I     10      3     361 

Compact  with  a  foreign  power.  No  State  shall,  with- 
out the  consent  of  Congress,  enter  into  any 
agreement    or i     10       3     361 

Compensation  of  Senators  and  Representatives  to  be 

ascertained  by  law i       6       i     350 

Compensatiofi  of  the  President  shall  not  be  increased 
nor  diminished  during  the  period  for  which  he 
shall  be  elected 2       i       6     363 

Compensation  of  the  judges  of  the  Supreme  and  infer- 
ior courts  shall  not  be  diminished  during  their 
continuance  in  office 3       i     —     365 

Compensation.     Private  property  shall  not  be  taken  for 

public  use  without  just.     [Amendments]     .     .       5     —     —     375 

Compulsory  process  for  obtaining  witnesses  in  his 
favor.  In  criminal  proscecutions  the  accused 
shall  have.     [Amendments] 6    —    —     376 

Confederation.     No  State  shall  enter  into  any  treaty, 

alliance,  or I     10       i     358 

Confederation.  All  debts  contracted  and  engagements 
entered  into  before  the  adoption  of  this  Con- 
stitution shall  be  as  valid  against  the  United 

States  under  it  as  under  the 6    —       i     371 

Confession  in  open  court.  Conviction  of  treason  shall 
be  on  the  testimony  of  two  persons  to  the  overt 
act,  or  upon 3       3       i     36S 

Congress  of  the  United  States.     All  legislative  powers 

shall  be  vested  in  a i       i     —     347 

Shall  consist  of  a  Senate  and  House  of  Repre- 
sentatives   I       I     —    347 

Congress  shall  assemble  at  least  once  in  every  year, 
which  shall  be  on  the  first  Monday  of  Decem- 
ber, unless  they  by  law  appoint  a  different  day       142     350 
May  at  any  time  alter  regulations  for  elections  of 
Senators  and  Representatives,  except  as  to  the 

places  of  choosing  Senators i       4       i     349 

Each  House  shall  be  the  judge  of  the  elections, 

returns,  and  qualifications  of  its  own  members       151     350 
A  majority   of   each    House    shall    constitute   a 

quorum  to  do  business i       5       i     350 

A  smaller  number  may  adjourn  from  day  to  day 
and  may  be  authorized  to  compel  the  attend- 
ance of  absent  members i       5       i     350 

Each  House  may  determine  the  rules  of  its  pro- 
ceedings,  punish    its    members   for  disorderly 


ec. 

Cl. 

Page 

5 

2 

350 

5 

3 

350 

5 

4 

350 

6 

I 

350 

OF   THE   UNITED    STATES  399 

Art. 
behavior,    and,  with  the   concurrence   of   two- 
thirds,  expel  a  member •       I 

Coni^ri'ss.     Each  House   shall   keep  a  journal  of   its 

proceedings i 

Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn 

for  more  than  three  days i 

Senators   and    Representatives    shall    receive    a 

compensation  to  be  ascertained  by  law  ...  i 
They  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from 
arrest  during  attendance  at  their  respective 
Houses,  and  in  going  to  and  returning  from  the 

same .•     •  .•       ^       ^       i     35° 

No  Senator  or  Representative  shall,  during  his 
term,  be  appointed  to  any  civil  office  which 
shall  have  been  created,  or  of  which  the  emolu- 
ments shall  have  been  increased,  during  such 

term i       6      2     351 

No  person  holding  any  office  under  the  United 
States  shall,   while   in   oflice,  be  a  member  of 

either  House  of  Congress I 

All  bills  for  raising  revenue  shall  originate  in  the 

House  of  Representatives i 

Proceedings   in   cases   of  bills   returned    by   the 

President  with  his  objections i 

Shall  have  power  to  lay  and  collect  duties,  im- 
posts, and  excises,  pay  the  debts,  and  pro- 
vide   for    the    common    defense    and    general 

welfare •       I 

Shall  have  power  to  borrow  money  on  the  credit 

of  the  United  States i 

To  regulate  foreign  and  domestic  commerce,  and 

with  the  Indian  tribes I 

To  establish  an  uniform  rule  of  naturalization 
and  uniform  laws  on  the  subject  of  bank- 
ruptcies     1     s     4   354 

To  coin  money,  regulate  its  value,  and  the  value 

of   foreign    coin,   and    to    fix  the   standard   of 

weights  and  measures i       8       5     354 

To  punish  the  counterfeiting   the  securities  and 

current  coin  of  the  United  States i       8       6     354 

To  establish  post-offices  and  post-roads  ....  i  8  7  354 
To  promote  the  progress  of  science  and  the  useful 

arts I       8      8     354 

To  constitute  tribunals  inferior  to  the  Supreme 

Court .•     •     •     ■       ^       ^       9     355 

To  define  and  punish  piracies  and  felonies  on  the 

high  seas  and  to  punish  offenses  against   the 

law  of  nations i       8     10     355 

To   declare    war,    grant    letters    of   marque   and 

reprisal,  and    make  rules  concerning  captures 

on  land  and  water i       8     11     355 


6 

0 

351 

7 

I 

351 

7 

I 

351 

8 

I 

351 

8 

2 

352 

8 

3 

352 

400        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 
Congress    shall    have    power    to    raise    and    support 
armies,  but  no  appropriation  of  money  to  that 
use  shall  be  for  a  longer  term  than  two  years  .        i       812     355 

To  provide  and  maintain  a  Navy i       813     355 

To  make  rules  for  the  government  of  the   Army 

and  Navy i       8     14     355 

To  call  out  the  militia  to  execute  the  laws,  sup- 
press insurrections,  and  repel  invasions    ...       i       815     355 

To  provide  for  organizing,  arming,  and  equipping 

the  militia .       i       8     16     355 

To  exercise  exclusive  legislation  over  the  District 
fixed  for  the  seat  of  government,  and  over  forts, 
magazines,   arsenals,  and  dockyards     ....       i       817     356 

To  make  all  laws  necessary  and  proper  to 
carry  into  execution  all  powers  vested  by 
the  Constitution  in  the  government  of  the 
United  States .       i       8     18     356 

No  person  holding  any  office  under  the  United 
States  shall  accept  of  any  present,  emolument, 
office,  or  title  of  any  kind  from  any  foreign 
State,  without  the  consent  of i       9      8     358 

May  determine  the  time  of  choosing  the  elec- 
tors for  President  and  Vice-President  and  the 
day  on  which  they  shall  give  their  votes  ...       2 

The  President  may,  on  extraordinary  occasions, 
convene  either  House  of 2 

The  manner  in  which  the  acts,  records,  and 
judicial  proceedings  of  the  States  shall  be 
proved,  shall  be  prescribed  by 4 

New  States  may  be  admitted  by  Congress  into 
this  Union 4 

Shall  have  power  to  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States  ...       4 

Amendinents  to  the  Constitution  shall  be  pro- 
posed whenever  it  shall  be  deemed  necessary 
by  two-thirds  of  both  Houses  of 5 

Persons  engaged  in  insurrection  or  rebellion 
against  the  United  States  disqualified  for  Sen- 
ators or  Representatives  in.     [Amendments]     .     14 

But  such  disqualifications  may  be  removed  by  a 
vote  of  two-thirds  of  both  Houses  of.  [Amend- 
ments]   14 

Shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  thirteenth  amendment.  [Amend- 
ments]   •     *3 

Shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  fourteenth  amendment.  [Amend- 
ments]  14 

Shall  have  power  to  enforce,  by  appropriate  legis- 
lation, the  fifteenth  amendment.  [Amendments]     15 
Consent.      No  State   shall    be  deprived  of   its  equal 

suffrage  in  the  Senate  without  its 5 


I 

3 

3b2 

3 

- 

364 

I 

— 

368 

3 

2 

370 

3 

I 

369 

- 

— 

370 

3 

— 

383 

3 

— 

383 

2 

— 

380 

5 

— 

383 

2 

— 

384 

- 

— 

371 

OF    THE    UNITED    STATES  401 

Art.    Sec.    CI.   Page 

Consent  of  Congress.     No  person  holding  any  office  of 

piont  or  trust  under  the  United   States  shall 

accept  of  any  present,  emolument,  office,  or  title 

of  any  kind   whatever,  from  any  king,  prince, 

or   oreign  potentate,  without  the I       9       8     358 

No  State  shall  lay  any  imposts  or  duties  on  im- 
ports, except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws,  without 

the I     10       2     360 

No  State  shall  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  without 

the I     10      3     361 

No  State  shall  enter  into  any  agreement  or  com- 
pact  with   another    State,    or    with    a  foreign 

power  without  the i     10       3     361 

No  State  shall  engage  in  war  unless  actually  in- 
vaded, or  in  such  imminent  danger  as  will  not 

admit  of  delay,  without  the I      10       3     361 

No  new  State  shail  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State,  or  any  State 
be  formed  by  the  junction  of  two  or  more 
States,  or  parts  of  States,  without  the  consent 
of  the  legislatures  thereof,  as  well  as  the  ..431  369 
Cortitxt  of  the  legislature  of  the  State  in  which  the 
same  may  be.  Congress  shall  exercise  exclusive 
authority  over  all  places  purchased  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards, 
and  other  needful  buildings  with  the  ....  i  817  356 
Consent  of  the  legislatures  of  the  States  and  of  Con- 
gress. No  State  shall  be  formed  by  the  junction 
of  two  or  more  States  or  parts  of  States  without 

the 4       3       I     369 

Consent  of  the  other.  Neither  House,  during  the  session 
of  Congress,  shall  adjourn  for  more  than  three 
days,  nor  to  any  other  place  than  that  in  which 

they  shall  be  sitting,  without  the i       5       4     350 

Consent  0/  the  owner.  No  soldier  shall  be  quartered 
in    time  of  peace   in  any   house    without   the. 

[Amendments] 3     —     —     374 

Consent  of  the  Senate.   The  President  shall  have  power 

to  make  treaties,  by  and  with  the  advice  and     .222     364 
The  President  shall  appoint  ambassadors,  other 
public   ministers    and    consuls,   judges   of   the 
Supreme  Court,  and  all  other  officers  created  by 
law  and  not  otherwise  herein  provided  for,  by 

and  with  the  advice  and 2       2       2     364 

Constittition,  in  the  Government  of  the  United  States,  or 
in  any  department  or  officer  thereof.  Congress 
shall  have  power  to  pass  all  laws  necessary  to 
the  execution  of  the  powers  vested  by  ...  .  i  818  356 
Constitution,  shall  be  elegible  to  the  office  of  President. 
No  person,  except  a  natural-born  citizen,  or  a 
citizen  a^the  time  o£  the  adoption  of  the  ..214  363 
26 


402        INDEX   TO    THE    CONSTITUTION 

Art.  Sec  CI.  Page 
Constitution.     The  President,  before  he    enters   upon 

the  execution  of  his  office,  shall  take  an  oath  to 

preserve,  protect,  and  defend  the 2       i       7     363 

Constitution,  laws,  and  treaties  of  the  United  States. 

The  judicial  power   shall   extend  to  all  cases 

arising  under  the 3       2       i     365 

Constitution  shall  be  so  construed  as  to  prejudice  any 

claims  of  the  United  States,  or  of  any  State  (in 

respect  to  territory  or  other  property  of  the 

United  States).     Nothing  in  the 432     370 

Constitution.     The  manner  in  which  amendments  to, 

may  be  proposed  and  ratified 5     —    —     370 

Constitution  shall  be  as  valid  under  it  as  under  the 

Confederation.      All    debts    and   engagements 

contracted  before  the  adoption  of  the  ....  6  —  i  371 
Constitution,  and  the  laws  made  in  pursuance  thereof, 

and  all  treaties  made,  or  which  shall  be  made, 

by  the  United  States,  shall  be  the  supreme  law 

of  the  land.     The 6     —       2     371 

The  judges  in  every  State,  anything  in  the  consti- 
tution or  laws  of  a  State  to  the  contrary  not- 
withstanding, shall  be  bound  thereby  ....  6  —  2  371 
Constitution.     All  officers,  legislative,  executive,  and 

judicial,  of  the  United  States,  and  of  the  several 

States,  shall  be  bound  by  an  oath  to  support  the  6  —  3  371 
But  no  religious  test  shall  ever  be  required  as  a 

qualification  for  any  office  or  public  trust  .  .  6  —  3  371 
Constitution,  between  the  States  so  ratifying  the  same. 

The    ratification    of  the  conventions  of    nine 

States  shall  be  sufficient  for  the  establishment 

of  the 7     —    —    372 

Constitution  of  certain  rights  shall  not  be  construed  to 

deny  or  disparage  others  retained  by  the  people. 

The  enumeration  in  the.  |  Amendments]  .  .  9  —  —  377 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  State  respectively  or  to  the  people. 

Powers  not  delegated  to  the  United  States  by 

the.     [Amendments] lo     —     —     377 

Constitution,  and  then  engaged  in  rebellion  against  the 

United  States,  disqualification  for  office  im- 
posed upon  certain  classes  of  persons  who  took 

an  oath  to  support  the.  [Amendments]  ...  14  3  —  383 
Constitution.     Done  in  convention  by  the  unanimous 

consent  of  the  States  present,  September  17, 

17S7 —  —  —  Z^l 

Contracts.     No  State   shall  pass  ^.Vi^  ex  post  facto  law, 

or  law  impairing  the  obligation  of I      10       I     358 

Controversies  to  which  the    United   States  shall  be  a 

party  ;  between  two  or  more  States  ;  between  a 

State   and  citizens  of  another  State;  between 

citizens  of  different  States;  between  citizens  of 

the  same  State  claiming  lands  under  grants  of 

different  States;  between  a  State  or  its  citizens 


Sec. 

CI. 

Page 

2 

I 

365 

3 

— 

364 

— 

— 

370 





372 
372 

3 

6 

349 

8 

8 

354 

3 

2 

368 

OF    THE    UNITED    STATES  403 

Art. 
and  foreign  States,  citizens,  or  subjects.     The 
judicial  power  shall  extend  to 3 

Convene  Congress  or  either  House,  on  extraordinary 

occasions.     The  President  may 2 

Convention  for  proposing  amendments  to  the  Con- 
stitution. Congress,  on  the  application  of  two- 
thirds  of  the  legislatures  of  the  States,  may  call 

a i) 

Convention,  by  the  unanimous  consent  of  the  States 
present  on  the  17th  of  September,  1787.  Adopt- 
ion of  the  Constitution  in 7 

Conventions  of  nine  States  shall  be  sufficient  for  the 
establishment  of  the  Constitution.  The  ratifi- 
cation of  the 7 

Conviction  in  cases  of  impeachment  shall  not  be  had 
without  the  concurrence  of  two-thirds  of  the 
members  present I 

Copyrights  to  authors  for   limited    times.     Congress 

shall  have  power  to  provide  for i 

Corruption  of  blood.     Attainder  of  treason  shall  not 

work 3 

Counsel  for  his  defense.  In  all  criminal  prosecutions 
the  accused  shall  have  the  assistance  of. 
[Amendments] 6    —    —     376 

Counterfeiting  the  securities  and  current  coin  of  the 
United  States.  Congress  shall  provide  for  the 
punishment  of i       8       6     354 

Courts.  Congress  shall  have  power  to  constitute  tri- 
bunals inferior  to  the  Supreme  Court  ....       i       8      9     355 

Courts  of  law.  Congress  may  by  law  vest  the  appoint- 
ment of  such  inferior  otiticers  as  they  think 
proper  in  the  President  alone,  in  the  heads  of 
Departments,  or  in  the 2       2       2     364 

Courts  as  Congress  may  establish.  The  judicial  power 
of  the  United  States  shall  be  vested  in  one  Su- 
preme Court  and  such  inferior 3       i     —     365 

Courts.  The  judges  of  the  Supreme  and  inferior 
courts    shall    hold   their   offices    during    good 

behavior 3       i     —     365 

Their  compensation  shall  not  be  diminished  dur- 
ing their  continuance  in  office 3       i     —     365 

Credit.     No  State  shall  emit  bills  of i     10       i     358 

Credit  of   the  United    States.      Congress  shall  have 

power  to  borrow  money  on  the i       8       2     352 

Credit  s\\2.\\  be  given  in  every  other  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  each 
State.     Full  faith  and 4       i     —    368 

Crime,  unless  on  a  presentment  of  a  grand  jury.  No 
person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous.  [Amendments]  ....  5  —  —  375 
Except  in  cases  in  the  military  and  naval  forces,  or 
in  the  militia,  when  in  actual  service.  [Amend- 
ments]   5     _    _     375 


404        INDEX    TO    THE    CONSTITUTION 

Art.   Sec.   CI.   Page 
Crimes  afid  misdemeanors.     The  President,  Vice-Pres- 
ident, and  all  civil  officers  shall  be  removed  on 
impeachment   for    and   conviction   of   treason, 

bribery,  or  other 2       4    —    365 

Crimes,  except  in  cases  of  impeachment,  shall  be  tried 

by  jury.     All 3       2       3     367 

They  shall  be  tried   in  the    State  within  which 

they  may  be  committed 3       2       3     367 

When  not   committed  in  a  State,  they  shall  be 
tried  at  the  places  which  Congress  may  by  law 

have  provided 3       2       3     367 

Criminal  prosecutions,  the  accused  shall  have  a  speedy 
and  public  trial  by  jury  in  the  State  and  district 
where  the  crime  was  committed.  In  all.  [Amend- 
ments]   6    —    —     376 

He  shall  be  informed  of  the  nature  and  cause  of 

the  accusation.     [Amendments] 6    —    —    376 

He  shall  be  confronted  with  the  witnesses  against 

him.     [Amendments] 6    —    —     376 

He  shall  have  compulsory  process  for  obtaining 

witnesses  in  his  favor.     [Amendments]    ...       6     —     —     376 
He  shall  have  the  assistance  of  counsel  in  his  de- 
fense.    [Amendments] 6    —    —     376 

Criminate  himself.     No  person  as  a  witness  shall  be 

compelled  to.     [Amendments] 5     —    —     375 

Cruel  and  unusual  punis/iments  inflicted.  Excessive 
bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor.     [Amendments] 8    —    —    377 


Danger  as  will  not  admit  of  delay.  No  State  shall, 
without  the  consent  of  Congress,  engage  in  war, 
unless  actually  invaded  or  in  such  imminent     .       i     10       3     361 

Day  on  which  they  shall  vote  for  President  and  Vice- 
President,  which  shall  be  the  same  throughout 
the  United  States.  Congress  may  determine 
the  time  of  choosing  the  electors  and  the     ..213     362 

Day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members.  A  smaller 
number  than  a  quorum  of  each  House  may 
adjourn  from i       5       i     350 

Death,  resignation,  or  inability  of  the  President,  the 
powers  and  duties  of  his  office  shall  devolve  on 
the  Vice-President.     In  case  of  the     ....       2       i       5     363 

Death,  resignation,  or  inability  of  the  President.  Con- 
gress may  provide  by  law  for  the  case  of  the 
removal 2       i       5     363 

Debt  of  the  United  States,  including  debts  for  pensions 
and  bounties  incurred  in  suppressing  insurrec- 
tion or  rebellion,  shall  not  be  questioned.  The 
validity  of  the  public.     [Amendments]     ...     14      4    —    383 


OF   THE   UNITED    STATES  405 

Art.    Sec.    CI.    Page 

Debts.     No  State  shall  make   anything  but  gold  and 

silver  coin  a  tender  in  payment  of i     lo       i     358 

Debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States.  Congress  shall 
have  power  to  pay  the i       8       I     351 

Debts  and  engagements  contracted  before  the  adoption 
of  this  Constitution  shall  be  as  valid  against  the 
United  States  under  it  as  under  the  Confed- 
eration   6    —       I     371 

Debts  or  obligations  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  claims 
for  the  loss  or  emancipation  of  any  slave. 
Neither  the  United  States  nor  any  State  shall 
assume  or  pay  any.     [Amendments]     ....     14       4     —     383 

Declare  War,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and 
water.     Congress  shall  have  power  to      ...       i       8     11     355 

Defense,  promote  the  general  welfare,  etc.     To  insure 

the  common.     [Preamble] —    —    —    347 

Defense  and  general  welfare  throughout  the  United 
States.  Congress  shall  have  power  to  pay  the 
debts  and  provide  for  the  common i       8       i     351 

Defense.  In  all  criminal  prosecutions  the  accused 
shall  have  the  assistance  of  counsel  for  his. 
[Amendments] 6    —     —     376 

Delaware  entitled  to  one  Representative  in  the  First 

Congress i       2       3     348 

Delay.  No  State  shall,  without  the  consent  of  Con- 
gress, engage  in  war  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of       i     10       3     361 

Delegated  Xo  the  United  States,  nor  prohibited  to  the 
States,  are  reserved  to  the  States  or  to  the 
people.     The  powers  not.     [Amendments]   .     .     10    —     —     377 

Deny  or  disparage  others  retained  by  the  people.  The 
enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to.     [Amendments]   .     .       9     —    —     377 

Departments  upon  any  subject  relating  to  their  duties. 
The  President  mav  require  the  written  opinion 
of  the  principal  officers  in  each  of  the  Executive       2 

Departments.  Congress  may  by  law  vest  the  appoint- 
ment of  inferior  officers  in  the  heads  of   .     .     .       2 

Direct  tax  shall  be  laid    unless  in  proportion  to  the 

census  or  enumeration.     No  capitation  or  other       i 

Direct  taxes  and  Representatives,  how  apportioned 
among  the  several  States.  [Repealed  by  the 
second  section  of  the  fourteenth  amendment, 
on  page  382] i 

Disability  of  the  President  and  Vice-President.  Pro- 
visions in  case  of  the 2 

Disability.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  Presidential  elector, 
or  hold  any  office,  civil  or  military,  under  the 
United  States,  or  any  State,  who  having  previ- 


I 

363 

2 

364 

4 

357 

3 

348 

5 

363 

4o6        INDEX   TO    THE    CONSTITUTION 

Art.   Sec.    CI.    Page 
ously  taken  an  oath  as  a  legislative,  executive, 
or  judicial  officer  of  the  United  States,  or  of  any 
State,  to  support  the  Constitution,  afterwards 
engaged  in  insurrection  or  rebellion  against  the 
United  States.     [Amendments]  ......     14       3     —     3^3 

Disability.     But  Congress  may,  by  a  vote  of  two-thirds 

of  each  House,  remove  such.      [Amendments]     14       3     —    3S3 
Disagreement  between  the  two  Houses  as  to  the  time 
of  adjournment,  the  President  may  adjourn  them 
to  such  time  as  he  may  thinlv  proper.    In  case  of       2       3     —     362 
Disorderly   behavior.      Each   House   may   punish   its 

members  for "       5      -     35° 

And  with  the  concurrence  of  two-thirds  expel  a 

member  for ^       5       ^     350 

Disparage  others  retained  by  the  people.  The  enumera- 
tion in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or.  [Amendments]  9  —  —  377 
Disqualification.  No  Senator  or  Representative  shall 
during  the  time  for  which  he  was  elected,  be 
appointed  to  any  office  under  the  United  States 
which  shall  have  been  created  or  its  emolu- 
ments increased  during  such  term  ....162  351 
No  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  House  dur- 
ing his  continuance  in  office i       6       2     351 

No  person  shall  be  a  member  of  either  House, 
Presidential  elector,  or  hold  any  office  under  the 
United  States,  or  any  State,  who,  having  pre- 
viously sworn  to  support  the  Constitution,  after- 
wards   engaged    in    insurrection   or   rebellion. 

[Amendments] '4       3  3°3 

But  Congress  may,  by  a  vote  of  two-thirds  of  each 

House,  remove  such  disability.    [Amendments]     14       3     —     3^3 
District  of  Columbia.     Congress  shall  exercise  exclu- 
sive legislation  in  all  cases  over  the     ....       I       8     17     356 
Dockyards.     Congress  shall  have  exclusive  authority 

over  all  places  purchased  for  the  erection  of      .       i       817     356 
Domestic  tranquillity,  provide  for  the  common  defense, 

etc.     To  insure.      [Preamble] —    —    —     347 

Domestic  violence.     The   United   States  shall  protect 

each  State  against  invasion  and •       4      4  37° 

Due  process  of  law.     No  person  shall  be  compelled,  in 
any  criminal  case,  to  be  a  witness  against  him- 
self, nor  be  deprived  of  life,  liberty,  or  property 
without.     [Amendments]     ........       5  375 

No  State  shall  deprive  any  person  of  life,  liberty, 

or  property  without.     [Amendments]    ....     14       I     —     380 

Duties  and  powers  of  the  office  of  President,  in  case  of 
his  (death,  removal,  or  inability  to  act,  shall  de- 
volve on  the  Vice-President •     •       2       i       5     363 

In  case  of  the  disability  of  the  President  and  Vice- 
President,  Congress  shall  declare  what  officer 
shall  act 2      i       5    3^3 


OF    THE    UNITED    STATES  407 

Art.    Sec.    CI.    Page 
Duties,  imposts,  and   excises.     Congress   shall   have 

power  to  lay  and  collect  taxes I       8       i     351 

Shall  be  uniform  throughout  the  United  States     .       i       8       i     351 
Duties  shall  be  laid  on  articles    exported  from  any 

State.     No  tax  or I       9       5     357 

Duties  in  another  State.    Vessels  clearing  in  the  ports 

of  one  State  shall  not  be  obliged  to  pay     ...196     357 
On  imports  and  exports,  without  the  consent  of 
Congress,  except  where  necessary  for  executing 
its  inspection  laws.     No  State  shall  lay  any  .     .       i     10       2     360 
Duties  on  imports  or  exports.     The  net  produce  of  all 
such  duties  shall  be  for  the  use  of  the  Treasury 

of  the  United  States i     10       2     360 

All  laws  laying  such  duties  shall  be  subject  to  the 

revision  and  control  of  Congress i     10      2     360 

Duty  of  toiutage  without  the  consent  of  Congress.    No 

State  shall  lay  any i     10      3     361 

E. 

Election  of  President  and  Vice-President.     Congress 

may  determine  the  day  for  the 2 

Shall  be  the  same  throughout  the  United  States. 
The  day  of  the 2 

Elections  for  Senators  and  Representatives.  The  legis- 
latures of  the  States  shall  prescribe  the  times, 

places,  and  manner  of  holding X 

But  Congress  may,  at  any  time,  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  Senators       i 

Elections  for  Senators  and  Representatives.  Returns 
and  qualifications  of  its  own  members.  Each 
House  shall  be  judge  of  the i 

Electors  for  members  of  the  House  of  Representatives. 

Qualifications  of i 

Electors  for  President  and  Vice-President.  Each  State 
shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors  equal 
to  the  whole  number  of  Senators  and  Represen- 
tatives to  which  the  State  may  be  entitled  in  the 

Congress 2       i       2     361 

But  no  Senator  or  Representative,  or  person  hold- 
ing an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector    ....       2       i       2     361 

Electors.  Congress  may  determine  the  time  of  choos- 
ing the  electors  and  the  day  on  which  they  shall 

give  their  votes 2       I       3     362 

Which   day    shall   be   the   same   throughout   the 

United   States 2       i       3     362 

The  electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  President  and  Vice-Presi- 
dent, one  of  whom,  at  least,  shall  not  be  an  in- 
habitant of  the  same  State  with  themselves. 
[Amendments] 12     —    —    378 


I 

3 

362 

I 

3 

362 

4 

I 

349 

4 

I 

349 

5 

I 

35° 

2 

I 

350 

3 

— 

383 

3 

— 

383 

4 
o 

I 

383 
358 

408        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 

Electors  shall  name,  in  their  ballots,  the  person  voted 
for  as  President;  and  in  distinct  ballots  the  per- 
son voted  for  as  Vice-President.  [Amendments]  12  —  —  378 
They  shall  m.ake  distinct  lists  of  the  persons  voted 
for  as  President  and  of  persons  voted  for  as 
Vice-President,  which  they  shall  sign  and  cer- 
tify, and  transmit  sealed  to  the  seat  of  govern- 
ment, directed  to  the  President  of  the  Senate. 

[Amendments] 12     —    —     378 

No  person  having  taken  an  oath  as  a  legislative, 
executive,  or  judicial  officer  of  the  United  States, 
or  of  any  State,  and  afterwards  engaged  in  in- 
surrection or  rebellion  against  the  United  States, 

shall  be  an  elector 14 

But  Congress  may,  by  a  vote  of  two-thirds  of  each 
House,  remove  such  disability.    [Amendments]     14 

Emancipation  of  any  slave  shall  be  held  to  be  illegal 

and  void.  Claims  for  the  loss  or.  [Amendments]     14 

Emit  bills  of  credit.     No  State  shall i 

Emolument  of  any  kind  from  any  king,  prince,  or  for- 
eign State,  without  the  consent  of  Congress. 
No  person  holding  any  office  under  the  United 
States  shall  accept  any I       9      8     358 

Enemies.  Treason  shall  consist  in  levying  war  against 
the  United  States,  in  adhering  to,  or  giving  aid 
and  comfort  to  their 3       3       i     368 

Engagements  contracted    before  the  adoption  of  this 

Constitution  shall  be  valid.     All  debts  and    .     .       6    —       i     371 

Enumeration  of  the  inhabitants  shall  be  made  within 
three  years  after  (he  first  meeting  of  Congress, 
and  within  every  subsequent  term  of  ten  years 

thereafter I       2       3     348 

Ratio  of  representation  not  to  exceed  one  for 
every  30,000  until  the  first  enumeration  shall  be 
made i       2       3     348 

Enumeration  in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.     The.     [Amendments]       9    —    —     371 

Egiial  protection  of  the  laws.  No  State  shall  deny 
to  any  person  within  its  jurisdiction  the. 
[Amendments] 14       i     —     380 

Equal  suffrage  in  the  Senate.  No  State  shall  be  de- 
prived without  its  consent  of  its 5     —    —     370 

Establishment  of  this  Constitution  l)etween  the  States 
ratifying  the  same.  The  ratification  of  nine 
States  shall  be  sufficient  for  the 7     —     —     372 

Excessive  hail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments 
inflicted.     [Amendments] 8     —    —     377 

Excises.  Congress  shall  have  power  to  lay  and  col- 
lect taxes,  duties,  imposts,  and I       8       i     351 

Shall  be  uniform  throughout  the  United  States. 

All  duties,  imposts,  and i       8       i     351 


OF   THE   UNITED    STATES 


409 


Exclusive  legislation,  in  all  cases,  over  such  district  as 
may  become  the  seat  of  government.  Congress 
shall  exercise i 

Exclusive  legislation  over  all  places  purchased  for  the 
erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings.  Congress 
shall  exercise I 

Executive  of  a  State.  The  United  States  shall  protect 
each  State  against  invasion  and  domestic  vio- 
lence on  the  application  of  the  legislature  or  the      4 

Executive  and  judicial  officers  of  the  United  States  and 
of  the  several  States  shall  be  bound  by  an  oath 
to  support  the  Constitution 6 

Executive  Departments.     On  subjects  relating  to  their 
duties  the   President   may  require  the  written 
opinions  of  the  principal  officers  in  each  of  the       2 
Congress  may  by   law  vest   the  appointment  of 
inferior  officers  in  the  heads  of 2 

Executive  power  shall  be  vested  in  a  President  of  the 

United  States  of  America.     The 2 

Expel  a  member.  Each  House,  with  the  concurrence 
of  two-thirds,  may 

Expenditures  of  public  money  shall  be  published  from 
time  to  time.  A  regular  statement  of  the  re- 
ceipts and 

Exportations  from  any  State.  No  tax  or  duty  shall  be 
laid  on 

Exports  or  imports,  except  upon  certain  conditions.  No 
State  shall,  without  the  consent  of  Congress, 

lay  any  duties  on 

Laid  by  any  State  shall  be  for  the  use  of  the  Treas- 
ury.    The  net  produce  of  all  duties  on      .     .     . 
Shall  be  subject  to  the  revision  and  control  of 
Congress.     All  laws  of  the  States  laying  duties 
on 

Ex  post  facto  law  shall  be  passed.  No  bill  of  attainder 
or 

Ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts.  No  State  shall  pass  any  bill  of 
attainder 

Extraordinary  occasions.  The  President  may  convene 
both  Houses  or  either  of  them     .*.... 

F. 

Faith  and  credit  in  each  State  shall  be  given  to  the 
acts,  records,  and  judicial  proceedings  of  an- 
other State.     Full 

Felony,  and  breach  of  the  peace.  Members  of  Con- 
gress shall  not  be  privileged  from  arrest  for 
treason 

Felonies  committed  on  the  high  seas.  Congress  shall 
have  power  to  define  and  punish  piracies  and   . 


Art.    Sec.   CI.    Page 

I      8     17     356 


17  356 

—  370 

3  371 

2  364 

1  361 

2  350 

7  358 

5  357 

2  360 

2  360 

2  360 

3  357 

I  358 

—  362 

-  368 

I  350 

10  355 


410        INDEX    TO    THE    CONSTITUTION 

Art.  Sec.    CI.   Page 

Fines.  Excessive  fines  shall  not  be  imposed.  [Amend- 
ments]    8    —    —    377 

Foreign  coin.  Congress  shall  have  power  to  coin  money, 
fix  the  standard  of  weights  aud  measures,  and 
to  regulate  the  value  of •       i       8       5     354 

Foreign  nations  among  the  States  and  with  the  Indian 
tribes.  Congress  shall  have  power  to  regulate 
commerce  with i       8       3     352 

Foreign  power.  No  State  shall,  without  the  consent  of 
Congress,  enter  into  any  compact  or  agreement 
with  any •     •       i     10       3     3^1 

Forfeiture  except  during  the  life  of  the  person  attainted. 

Attainder  of  treason  shall  not  work      ....       3       3       2     368 

Formation  of  new  States.     Provisions  relating  to  the  .       4       3       i     369 

Fortn  of  government.  The  United  States  shall  guaran- 
tee to  every  State  in  this  Union  a  republican  .44  —  370 
And  shall  protect  each  of  them  against  invasion ; 
and  on  application  of  the  legislature  or  of  the 
executive  (when  the  legislature  can  not  be  con- 
vened) against  domestic  violence 4       4     —    37° 

Forts,  magazines,  arsenals,  dockyards,  and  other  need- 
ful buildings.  Congress  shall  exercise  exclusive 
authority  over  all  places  purchased  for  the  erec- 
tion of 1       8     17     356 

Freedom  of  speech  or  the  press.     Congress  shall  make 

no  law  abridging  the.     [Amendments]      ...       I     —    —     374 

Free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed.  A  well-regulated 
militia  being  necessary  to  the  security  of  a. 
[Amendments] 2     —     —     374 

Fugitives  from  crime  found  in  another  State  shall,  on 
demand,  be  delivered  up  to  the  authorities  of 
the  State  from  which  they  may  flee 4       2       2     369 

Fugitives  from  service  or  labor  in  one  State,  escaping 
into  another  State,  shall  be  delivered  up  to  the 
party  to  whom  such  service  or  labor  may  be  due      423     369 


G. 

General  welfare  and  secure  the  blessings  of  liberty,  e 

To  promote  the.     [Preamble] —     —     —     347 

(}eneral  welfare.    Congress  shall  have  power  to  provide 

for  the  common  defense  and i       8       i     351 

Georgia  shall   be  entitled  to  three  Representatives  in 

the  First  Congress i       2       3     348 

Gold  and  silver  coin  a  tender  in  payment  of  debts.    No 

State  shall  make  anything  but I     10       I     358 

Good  behavior.  The  judges  of  the  Supreme  and  infe- 
rior courts  shall  hold  their  offices  during  ..31  —  365 
Government.     The   United   States   shall    guarantee  to 

every   State   in   this   Union    a   republican  form 

of 4       4     —     370 


OF   THE    UNITED    STATES  4H 

Art.  Sec.  CI.  Page 
Government.     And  shall  protect  each  of  them  against 

invasion;  and  on  application  of  the  legislature 

or  of  the  executive  (when  the  legislature  can 

not  be  convened)  against  domestic  violence  .44  —  370 
Grand  jury.     No  person  shall  be  held  to  answer  for  a 

capital  or  otherwise  infamous  crime,  unless  on 

the  presentment  of  a.  [Amendments]  ...  5  —  —  375 
Except   in   cases  arising  in  the    land   and  naval 

forces,  and  in  the  militia  when  in  actual  service. 

[Amendments] 5     —    —    375 

Guarantee  to  every  State  in  this  Union  a  republican 

form  of  government.  The  United  States  shall  4  4  —  37° 
Guarantee.     And  shall  protect  each  of  them  against 

invasion,  and  on  application  of  the  legislature  or 

of  the  executive  (when  the  legislature  can  not  be 

convened)  against  domestic  violence    ....      4      4    —    370 


H. 

Habeas  corpus  shall  not  be  suspended  unless  in  cases  of 

rebellion  or  invasion.     The  writ  of i       9       2     357 

Heads  of  Departments.     Congress  may  by  law  vest  the 

appointment  of  inferior  officers  in  the  ....       22       2     364 

On  any  subject  relating  to  their  duties,  the  Presi- 
dent may  require  the  written  opinion  of  the 
principal  officers  in  each  of  the  Executive  De- 
partments       .     •       2       2       I     363 

High  crimes  and  jnisdemeanors.  The  President,  Vice- 
President,  and  all  civil  officers  shall  be  removed 
on  impeachment  for  and  conviction  of  treason, 

bribery,  or  other 2       4    —     365 

House  of  Representatives.     Congress  shall  consist  of  a 

Senate  and i       i     —     347 

Shall  be  composed  of  members  chosen  every  second 

year        i       2       i     347 

Qualifications  of  electors  for  members  of  the   ..121     347 

No  person  shall  be  a  member  who  shall  not  have 
attained  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States      ..122     348 

The  executives  of  the  several  States  shall  issue 

writs  of  election  to  fill  vacancies  in  the      ...124     34S 

Shall  choose  their  Speaker  and  other  officers    ..125     348 

Shall  have  the  sole  power  of  impeachment  ...125     348 

Shall  be  the  judge  of  the  elections,  returns,  and 
qualifications  of  its  own  members I       5       '     35° 

A  majority  shall  constitute  a  quorum  to  do  business       151     350 

Less  than  a  majority  may  adjourn  from  day  to  day, 

and  compel  the  attendance  of  absent  members  .151     350 

May  determine  its  own  rules  of  proceedings      ..152     350 

May  punish  its  members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two-thirds,  expel  a 
member i       S      2     350 


412        INDEX   TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 
House  of  Representatives  shall  keep  a  journal  of  its 

proceedings _    ■       ^       5       3     35*^ 

Shall  not  adjourn  for  more  than  three  days  during 
the  session  of  Congress  without  the  consent  of 
the  Senate i       5       4    35° 

For  any  speech  or  debate  in  either  House,  mem- 
bers shall  not  be  questioned  in  any  other  place         i       6       i     350 

No  person  holding  any  office  under  the  United 
States  shall,  while  holding  such  office,  be  a 
member  of  the i       ^      2     351 

No  member  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  an  office  which 
shall  have  been  created  or  the  emoluments  in- 
creased during  his  membership i       6       2     351 

All  bills  for  raising  revenue  shall  originate  in  the       i       7       i     351 

The  votes  for  President  and  Vice-President  shall 
be  counted  in  the  presence  of  the  Senate  and. 
[Amendments] 12     —     —     378 

If  no  person  have  a  majority  of  electoral  votes, 
then  from  the  three  highest  on  the  list  the  House 
of  Representatives  shall  immediately,  by  ballot, 
choose  a  President.     [Amendments]     ....     12     —    —     378 

They  shall  vote  by  States,  each  State  counting  one 

vote.     [Amendments] 12     —     —    378 

A  quorum  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States  and  a  majority  of 
all  the  States  shall  be  necessary  to  the  choice  of 
a  President.     [Amendments] 12     —    —    378 

No  person  having  as  a  legislative,  executive,  or 
judicial  officer  of  the  United  States,  or  of  any 
State,  taken  an  oath  to  support  the  Constitution, 
and  afterwards  engaged  in  insurrection  or  rebel- 
lion against  the  United  States  shall  be  a  mem- 
ber of  the.     [Amendments] 14       3     —     383 

But  Congress  may,  by  a  vote  of  two-thirds  of  each 

House,  remove  such  disability.     [Amendments]     14       3    —     383 


Imminent  danger  as  will  not  admit  of  delay.  No  State 
shall,  without  the  consent  of  Congress,  engage 
in  war,  unless  actually  invaded  or  in  such       .     .       I      10       3     361 

Immunities.  Members  of  Congress  shall,  in  all  cases 
except  treason,  felony,  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same  .161  350 
No  soldier  shall  be  quartered  in  any  house  with- 
out the  consent  of  the  owner  in  time  of  peace. 

[Amendments] 3    —    —    374 

No  person  shall  be  twice  put  in  jeopardy  of 
life  or  limb  for  the  same  offense.  [Amend- 
ments]    5    _    _    374 


OF   THE   UNITED    STATES  413 

Art.  Sec.  CI.  Page 
Immunities.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and 
of  the  State  in  which  they  reside.  [Amend- 
ments]  14       I     —     3S0 

No  State  shall  make  or  enforce  any  law  which 

shall  abridge   the   privileges  or  immunities  of 

citizens  of  the  United  States.     [Amendments]  .     14       I     —     380 

Nor  shall  any  State  deprive  any  person  of  hfe, 

liberty,  or  property  without  due  process  of  law 

[Amendments] .-.•.•''*       1     —     380 

Nor   deny  to  any  person  within  its  jurisdiction 

the  equal  protection  of  the  laws.  [Amendments]     14       i     —     3S0 
Impeachment.     The  President  may  grant  reprieves  and 

pardons  except  in  cases  of 2       2       i     363 

The  House  of  Representatives  shall  have  the  sole 

power  of I       *       S     348 

The  trial  of  all  crimes  shall  be  by  jury,  except  in 

cases  of •     •      3      2      3     367 

Impeachment  for  and  conviction  of  treason,  bribery, 
and  other  high  crimes  and  misdemeanors.  The 
President,  Vice-President,  and  all  civil  officers 

shall  be  removed  upon 2       4 

Impeachments.     The  Senate  shall  have  sole  power  to 

try  all I       3 

The  Senate  shall  be  on  oath  or  affirmation,  when 

sitting  for  the  trial  of i       3 

When  the  President  of  the  United  States  is  tried 

the  Chief  Justice  shall  preside i       3 

No  person  shall  be  convicted  without  the  concur- 
rence of  two-thirds  of  the  members  present    ..13 
Judgment  shall  not  extend  beyond  removal  from 

office  and  disqualification  to  hold  office     •     •_    •       ^       3 
But  the  party  convicted    shall  be  liable  to  indict- 
ment and  punishment  according  to  law     ...13 
Importation  of  slaves  prior  to  1808  shall  not  be  pro- 
hibited by  the  Congress I       9 

But  a  tax  or  duty  of  ten  dollars  for  each  person 

may  be  imposed  on  such i       9 

Imports  or  exports  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws.  No 
State  shall,  without  the  consent  of  Congress,  lay 

any  imposts  or  duties  on I     10       2     360 

Imports  or  exports  laid  by  any  State  shall  be  for  the 
use  of  the  Treasury.     The  net  produce  of  all 

duties  on i     10       2     360 

Imports  or  exports  shall  be  subject  to  the  revision  and 
control  of  Congress.     All  laws  of  States  laying 

duties  on \     \o       2     360 

Imposts  and  excises.    Congress  shall  have  power  to  lay 

and  collect  taxes,  duties I       8       i     351 

Shall  be  uniform  throughout  the  United  States. 

All  taxes,  duties i       8       i     3^1 


6 

349 

6 

349 

6 

349 

6 

349 

7 

349 

7 

349 

I 

356 

I 

356 

414        INDEX   TO    THE    CONSTITUTION 

Art.    Sec.  CI.   Page 

Inability  of  the  President,  the  powers  and  duties  of  his 
office  shall  devolve  on  the  Vice-President.  In 
case  of  the  death,  resignation,  or 2       i       5     363 

Inability  of  the  President  or  Vice-President.  Congress 
may  provide  by  law  for  the  case  of  the  removal, 
death,  resignation,  or 2       I       5     363 

Indian  Tribes.    Congress  shall  have  power  to  regulate 

commerce  with  the i       8       3     352 

Indictmetit  or  presentment  of  a  grand  jury.  No  per- 
son shall  be  held  to  answer  for  a  capital  or 
infamous  crime  unless  on.  [Amendments]  .  .  5  —  — ''375 
Except  in  cases  arising  in  the  land  or  naval 
forces  or  in  the  militia  when  in  actual  service. 
[Amendments] 5     —     —     375 

Indictment,  trial,  judgment,  and  punishment,  accord- 
ing to  law.  The  party  convicted  in  case  of 
impeachment  shall  nevertheless  be  liable  and 
subject  to I        3       7  349 

Infamous  critne  unless  on  presentment  or  indictment 
of  a  grand  jury.  No  person  shall  be  held  to 
answer  for  a  capital  or.     [Amendments]  ...       5     —    —     375 

Inferior  Courts.  Congress  shall  have  power  to  con- 
stitute tribunals  inferior  to  the  Supreme  Court       i       8      9     355 

Inferior  courts  as  Congress   may   establish.     The  ju- 
dicial   power   of    the    United    States   shall    be 
vested  in  one  Supreme  Court  and  such     •     •.    •       3       ^     —     3"5 
The   judges   of   both   the   Supreme  and   inferior 
courts    shall    hold    their    offices   during   good 

behavior 3       1     —     365 

Their  compensation  shall  not  be  diminished  dur- 
ing their  continuance  in  office _    •     .       3       ^     —    3"5 

Inferior  ofUcers  in  the  courts  of  law,  in  the  President 
alone,  or  in  the  heads  of  Departments.  Con- 
gress, if  they  think  proper,  may  by  law  vest  the 
appointment  of 2       2       2     364 

Inhabitant  of  the  State  for  which  he  shall  be  chosen. 
No  person  shall  be  a  Senator  who  shall  not 
have  attained  the  age  of  thirty  years,  been  nine 
years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an i       3       3     349 

Insurrection  or  rebellion  against  the  United  States.  No 
person  shall  be  a  Senator  or  Representative  in 
Congress,  or  Presidential  elector,  or  hold  any 
office,  civil  or  military,  under  the  United  States, 
or  any  State,  who,  having  taken  an  oath  as  a 
legislative,  executive,  or  judicial  officer  of  the 
United  States,  or  of  a  State,  afterwards  engaged 

in.     [Amendments] 14       3    —     iPi 

But  Congress  may,  by  a  vote  of  two-thirds  of  each 

House,  remove  such  disabilities.  [Amendments]     14      3     —     '^Z 
Debts  declared  illegal  and  void  which  were  con- 
tracted in  aid  of.     [Amendments] 14       4    —     '^Z 

Insiirrectioiis  and  repel  invasions.  Congress  shall  pro- 
vide for  calling  forth  the  militia  to  suppress     .       i       815     355 


OF    THE   UNITED    STATES  415 

Art.  Sec.  CI.  Page 
Invasion.     No    State   shall,    without   the   consent   of 

Congress,  engage  in  war  unless  actually  invaded, 

or  in  such  imminent  danger  as  will  not  admit  of 

delay I     lo      3    361 

The  writ  of  habeas  corpus  shall  not  be  suspended 

unless  in  case  of  rebellion  or i       9       i     356 

Invasion  and  domestic   violence.     The  United  States 

shall  protect  each  State  against 4      4     —     370 

Invasions.    Congress  shall  provide  for  calling  forth  the 

militia  to  suppress  insurrections  and  repel  .  .  i  815  355 
Inventors  and  authors  in  their  inventions  and  writings. 

Congress  may  pass  laws  to  secure  for  limited 

times  exclusive  rights  to i      8      8    354 

Involuntary    servitude,    except   as   a   punishment   for 

crime,  abolished  in  the  United  States.    Slavery 

and.     [Amendments] 13       i     —    380 

J. 

Jeopardy  of  life  or  limb  for  the  same  offense.    No  per- 
son shall  be  twice  put  in.     [Amendments]     .     .       5     —    —     375 
Jour7ial  of  its  proceedings.     Each  House  shall  keep  a       i       5       3     350 
fudges  in  every  State  shall  be  bound  by  the  Constitu- 
tion, the  laws  made  in  pursuance  thereof,  and 
treaties  of  the  United  States,  which  shall  be  the 

supreme  law  of  the  land 6    —       2     371 

Judges  of  the  Supreme  and  inferior  courts  shall  hold 

their  offices  during  good  behavior 3       i     —     365 

Their  compensation  shall  not  be  diminished  dur- 
ing their  continuance  in  office 3       i     —    365 

Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office  and  dis- 
qualification to  hold  any  office  of  honor,  trust, 
or  profit  under  the  United  States i       3       7     349 

But  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment, 

and  punishment  according  to  law i       3       7     349 

Judicial  power  of  the  United  States.  Congress  shall 
have  power  to  constitute  tribunals  inferior  to 
the  Supreme  Court I       8       9     355 

The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such 
inferior  courts  as  Congress  may  from  time  to 
time  ordain  and  establish 3       i     —     365 

The  judges  of  the   Supreme  and  inferior  courts 

shall  hold  their  offices  during  good  behavior      .31     —     365 

Their  compensation  shall  not  be  diminished  dur- 
ing their  continuance  in  office 3       i     —     365 

It  shall  extend  to  all  cases  in  law  and  equity  aris- 
ing under  the  Constitution,  laws,  and  treaties  of 
the  United  States 3       2       i     365 

To  all  cases  affecting  ambassadors,  other  public 

ministers  and  consuls 3      2       i     365 


4i6        INDEX    TO    THE    CONSTITUTION 

Art.  Sec.  CI.  Page 
Judicial  power  of  the  United  States  shall   extend   to 

all  cases  of  admiralty  and  maritime  jurisdiction  .  321  365 
To  controversies  to  which  the  United  States  shall 

be  a  party 3       ^       i     365 

To  controversies  between  two  or  more  States  ..321  365 
To   controversies    between  a  State    and  citizens 

of  another  State 3       2       i     365 

To  controversies    between   citizens   of  different 

States 3      2       i     365 

To   citizens   of   the   same    State   claiming   lands 

under  grants  of  different  States     ......       3       2       I     365 

To  controversies  between  a  State  or  its  citizens 

and  foreign  states,  citizens,  or  subjects  ...321  365 
In  all  cases  affecting  ambassadors,  other  public 

ministers   and   consuls,  and   those  in  which  a 

State   shall  be   a    party,   the    Supreme    Court 

shall  have  original  jurisdiction 3       2       2     367 

In  all  other  cases  before  mentioned  it  shall  have 

appellate  jurisdiction,  both  as  to  law  and  fact, 

with  such  exceptions  and  under  such  regulations 

as  Congress  shall  make 3       2       2     367 

The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury 3       2       3     367 

The   trial   shall  be  held  in  the  State  where  the 

crimes  shall  have  been  committed 3       2       3     367 

But  when  not  committed  in  a  State,  the  trial  shall 

be  at  such  place  or  places  as  Congress  may  by 

law  have  directed 3       2       3     367 

The  judicial  power  of  the  United  States  shall  not 

be  held  to  extend  to  any  suit  in  law  or  equity 

commenced  or  prosecuted  against  one  of  the 

United  States  by  citizens  of  another  State,  or 

by  citizens   or   subjects  of   any  foreign   State. 

[Amendments] .•"     —    —     37^ 

Judicial  proceediiigs  of  every  other   State.     Full  faith 

and  credit  shall  be  given  in  each  State  to  the 

acts,  records,  and 4       i     —     3^^ 

Congress  shall  prescribe  the  manner  of  proving 

such  acts,  records,  and  proceedings  ....  4  i  —  368 
Judicial 2ir\d  executive  oiificers  of  the  United  States  and 

of  the  several  States  shall  be  bound  by  an  oath 

to  support  the  Constitution 6     —       3     371 

Judiciary.     The  Supreme  Court  shall  have  original 

jurisdiction  in  all  cases  affecting  ambassadors, 

other  public  ministers  and  consuls,  and  those  in 

which  a  State  may  be  a  party 3       2       2     367 

The  Supreme  Court  shall  have  appellate  juris- 
diction   both   as    to   law   and   fact,    with   such 

exceptions  and  regulations  as  Congress   may 

make .      3      2      2    367 

/unction  of  two  or  more  States  or  parts  of  States  with- 
out the  consent  of  the  legislatures  and  of  Con- 
gress.    No  State  shall  be  formed  by  the  ...431     369 


OF   THE   UNITED    STATES  417 

Art,    Sec.    CI.    Page 

Jurisdiction  of  another  State.  No  new  State  shall, 
without  the  consent  of  Congress,  be  formed  or 
erected  within  the 4       3       i     369 

Jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions and  under  such  regulations  as  Congress 
may  make.  The  Supreme  Court  shall  have 
appellate 3       2       2     369 

Jurisdiction.  In  all  cases  affecting  ambassadors,  and 
other  public  ministers,  and  consuls,  and  in  cases 
where  a  State  is  a  party,  the  Supreme  Court 
shall  have  original       3       2       2     369 

Jury.  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by 3       2       3     369 

In  all  criminal  prosecutions  the  accused  shall  have 

a  speedy  and  public  trial  by.      [Amendments]  6    —    —     376 

All  suits  at  common  law,  where  the  value  exceeds 

twenty  dollars,  shall  be  tried  by.    [Amendments]       7     —     —     377 
Where  a  fact  has  been  tried  by  a  jury  it  shall  not 
be  re-examined  except  by  the  rules  of  the  com- 
mon law.     [Amendments] 7     —    —     377 

Just  compensation.    Private  property  shall  not  be  taken 

for  public  use  without.     [Amendments]    ...       5     —     —     375 
Justice,  insure  domestic  tranquillity,  etc.    To  establish. 

[Preamble] —    —    —    347 


Labor,  in  one  State,  escaping  into  another  State,  shall 
be  delivered  up  to  the  party  to  whom  such  ser- 
vice or  labor  may  be  due.  Fugitives  from  ser- 
vice or 4       2       3     369 

Land  and  naval  forces.     Congress  shall  make  rules  for 

the  government  and  regulation  of  the    ....       i       8     14     355 

Law  and  fact,  with  exceptions  and  under  regulations 
to  be  made  by  Congress.  The  Supreme  Court 
shall  have  appellate  jurisdiction  as  to  ...     .       3       2       2     367 

Law  of  the  land.  The  Constitution,  the  laws  made  in 
pursuance  thereof,  and  treaties  of   the  United 

States  shall  be  the  supreme 6    —       2     371 

The  judges  in  every  State  shall  be  bound  thereby       6    —       2     371 

Law  of  nations.    Congress  shall  provide  for  punishing 

offenses  against  the i       8     10     355 

Laws.  Congress  shall  have  power  to  provide  for  cal- 
ling forth  the  militia  to  suppress  insurrection, 
repel  invasions,  and  to  execute  the i       815     355 

Laws  and  treaties  of  the  United  States.  The  judicial 
power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  the  Constitution  or  the    ....       3       2       i     365 

Laws  necessary  to  carry  into  execution  the  powers 
vested  in  the  Government,  or  in  any  department 
or  officer  of  the  United  States.     Congress  shall 

have  power  to  make  all i       8     18     356 

27 


4i8        INDEX   TO    THE    CONSTITUTION 

Art.    Sec.    CI.   Page 

Legal  tetider  in   payment  of  debts.     No  State  shall 

make  anything  but  gold  and  silver  coin  a      .     .       i     lo       i     358 

Legislation  in  all  cases  over  such  district  as  may  be- 
come the  seat  of  government.     Congress  shall 

have  power  to  exercise  exclusive i       817     356 

Over  all  places  purchased  by  consent  of  the  legis- 
latures in  the  different  States  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings.  Congress  sliall  have  power 
to  exercise  exclusive i       8     17     356 

Legislation.  Congress  shall  have  power  to  make  all 
laws  necessary  and  proper  for  carrying  into  exe- 
cution all  the  powers  vested  by  the  Constitution 
in  the   Government  of  the  United  States,  or  in 

any  department  or  officer  thereof i       8     18     356, 

Congress  shall  have  power  to  enforce  the  thir- 
teenth amendment  by  appropriate.  [Amend- 
ments]    13       2    —     380 

Congress  shall  have  power  to  enforce  the  four- 
teenth amendment  by  appropriate.  [Amend- 
ments]    14       5    —     383 

Congress  shall  have  power  to  enforce  ths  fifteenth 

amendment  by  appropriate.     [Amendments]     •     ^S       ^     —     3^4 

Legislative  powers  herein  granted  shall  be  vested  in  a 

Congress.     All i       i     —     347 

Legislature  or  the  executive  (when  the  legislature  can 
not  be  convened).  The  United  States  shall 
protect  each  State  against  invasion  ;  and 
against  domestic  violence  on  the  application  of 
the     ... 4       4    —     370 

Legislatures  of  two-thirds  of  the  States,  Congress  shall 
call  a  convention  for  proposing  amendments 
to  the  Constitution.  On  the  application  of 
the 5    _    _    370 

Letters  oi  marque  and  reprisal.     Congress  shall  have 

power  to  grant I       811      355 

No  State  shall  grant i     10       i     358 

Liberty  to  ourselves  and  our  posterity,  etc.     To  secure 

the  blessings  of.     [Preamble] —    —    —     347 

Life,  liberty,  and  property  without  due  process  of  law. 
No  person  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself,  nor  be  de- 
prived of.      [Amendments] 5     —     —     375 

No  .State  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States,  nor  deprive 
any  person  of.     [Amendments] 14       i     —     380 

Life  or  limb  for  the  same  offense.     No  person  shall  be 

twice  put  in  jeopardy  of.     [Amendments]     .     .       5     —     —     375 

Loss  or  emancipation  of  any  slave  shall  be  held  illegal 

and  void.     Claims  for  the.     [Amendments]      .14      4    —    383 


OF   THE    UNITED    STATES  419 


M. 

Art.  Sec.  CI.  Page 
Magazines,  arsenals,  dockyards,  and  other  needful  build- 
ings.    Congress  shall  have  exclusive  authority 

over  all  places  purchased  for  the  erection  of  .  I  817  356 
Majority  of  each  House  shall  constitute  a  quorum  to 

do  business.     A i       5       I     350 

But  a  smaller  number  may  adjourn  from  day  to 

day  and  may  be  authorized  to  compel  the  attend- 
ance of  absent  members i       5       i     350 

i^/(Z/oW/y  of  all  the  States  shall  be  necessary  to  a  choice.       151     350 

When  the  choice  of  a  President  shall  devolve  on 

the  House  of   Representatives,  a  quorum  shall 

consist  of  a  member  or  members  from  two-thirds 

of  the  States ;  but  a.  [Amendments]  ...  12  —  —  378 
When  the  choice  of  a  Vice-President  shall  devolve 

on  the  Senate,  a  quorum  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a 

majority  of  the  whole  number  shall  be  necessary 

to  a  choice.     [Amendments] 12    —    —     378 

Maritime  jicrisdiction.    The  judicial  power  shall  extend 

to  all  cases  of  admiralty  and 3       2       i     365 

Marque  and  reprisal.     Congress  shall  have  power  to 

grant  letters  of i       8     11     355 

No  State  shall  grant  any  letters  of       I     10       i     358 

Maryland  entitled  to  six  Representatives  in  the  First 

Congress i       2       3     348 

Massachusetts  entitled  to  eight  Representatives  in  the 

First  Congress i       2       3     348 

Measures.     Congress  shall  fix  the  standard  of  weights 

and         I       8       5     354 

Meeting  of  Congress:    The  Congress  shall  assemble  at 

least  once  in  every  year,  and  such  meeting  shall 

be  on  the  first  Monday  in  December,  unless  they 

shall  by  law  appoint  a  different  day  ....  I  4  2  350 
Members  oi  Congress  and  of  State  legislatures  shall  be 

bound  by   oath  or  affirmation  to  support  the 

Constitution 6    —      3     37^ 

Militia  to  execute  the  laws,  suppress  insurrections,  and 

repel   invasions.      Congress   shall  provide   for 

calling  forth  the i       815     355 

Congress  shall  provide  for  organizing,  arming,  and 

disciplining  the i       8     16     355 

Congress  shall  provide  for  governing  such  part 

of   them  as  may  be  employed  by  the  United 

States I       8     16     355 

Reserving  to  the  States  the  appointment  of   the 

officers  and  the  right  to  train  the  militia  accord- 
ing to  the  discipline  prescribed  by  Congress  .1816  35S 
A  well-regulated  militia  being   necessary  to   the 

security  of  a  free  State,  the  right  of  the  people 

to  keep  and  bear  arms  shall  not  be  infringed. 

[Amendments] 2     —    —     374 


420        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CL    Page 
Misdetneanors.      The  President,  Vice-President,  and 
all  civil  officers  shall  be  removed  on  impeach- 
ment for  and  conviction  of  treason,  bribery,  or 

other  high  crimes  and 2       4     —     365 

Money  o\\  the  credit  of  the  United  States.     Congress 

shall  have  power  to  borrow i       8       2     352 

Regulate  the  value  thereof  and  of   foreign   coin. 

Congress  shall  have  power  to  coin i       8       5     354 

Shall  be  drawn  from  the  Treasury  but  in  conse- 
quence of  appropriations  made  by  law.     No   .197     358 

Shall  be  published  from  time  to  time.  A  regular 
statement  and  account  of  receipts  and  expendi- 
tures of  public 1       9      7     35S 

For  raising  and  supporting  armies.  No  appro- 
priation of  money  shall  be  for  a  longer  term 
than  two  years i       812     355 


N, 

Natiots.  Congress  shall  have  power  to  regulate  com- 
merce with  foreign i       8       3     352 

Congress   shall    provide   for   punishing   offenses 

against  the  law  of I       8     10     355 

Natural-horn  citizen,  or  a  citizen  at  the  adoption  of  the 
Constitution,  shall  be  eligible  to  the  office  of 
President.     No  person  except  a 2       I       4     362 

Naturalization.  Congress  shall  have  power  to  estab- 
lish a  uniform  rule  of i       8       4     354 

Naturalized  \\\  the  United  States,  and  subject  to  their 
jurisdiction,  shall  be  citizens  of  the  United 
States  and  of  the  State  in  which  they  reside. 
All  persons  born  or.     [Amendments]  ....     14       i     —     380 

Naval  forces.  Congress  shall  make  rules  and  regu- 
lations for  the  government  and  regulation  of 
the  land  and i 

Navy.     Congress  shall  have  power  to  provide    and 

maintain  a I 

New  Ilainpshire  entitled  to  three  Representatives  in 

the  First  Congress i 

New  Jersey  entitled  to  four  Representatives  in    the 

First  Congress i 

N^ew  States   may  be  admitted  by   Congress  into  this 

Union 4 

But  no  new  State  shall  be  formed  within  the  juris- 
diction of  another  State  without  the  consent  of 

the  legislature  and  of  Congress 4       3       "     3^ 

Nor  shall  any  State  be  formed  by  the  junction  of 
two  or  more  States,  or  parts  of  States,  without 
the  consent  of  the  legislatures  and  of  Congress       431     369 

New  York  entitled  to  six  Representatives  in  the  First 

Congress i       2       3     348 


14 

355 

13 

355 

3 

348 

3 

34S 

I 

369 

OF   THE    UNITED    STATES  421 

Art.  Sec.  CI.  Page 
Nobility  shall  be  granted  by  the  United  States.     No 

title  of I       9       8     358 

No  State  shall   grant  any  title  of i     lo       i     358 

Nominations  for  office  by  the  President.  The  Pres- 
ident  shall    nominate,    and,   by  and  with  the 

advice  and  consent  of  the  Senate,  shall  appoint 

ambassadors  and  other  public  officers  ....  2  2  2  364 
He  may  grant  commissions  to  fill   vacancies  that 

happen  in  the  recess  of  the  Senate,  which  shall 

expire  at  the  end  of  their  next  session  ....  2  2  3  364 
North  Carolina  entitled  to  five  Representatives  in  the 

First  Congress i       2       3     348 

Number  of  electors  for  President  and  Vice-President 

in  each  State  shall  be  equal  to  the  number   of 

Senators  and   Representatives   to   which  such 

State  may  be  entitled  in  Congress 2       i       2     361 


O. 

Oath  of  office  of  the  President  of  the  United  States. 

Form  of  the 2       I       7     363 

Oath  or  afirmatiofi.  No  warrants  shall  be  issued  but 
upon  probable  cause,  supported  by.  [Amend- 
ments]   4    _    _    375 

Oath  or  affirviatton  to  support  the  Constitution.  Sen- 
ators and  Representatives,  members  of  State 
legislatures,  executive  and  judicial  officers  of 
the   United  States    and  of  the  several  States, 

shall  be  bound  by 6    - 

But  no  religious  test  shall  ever  be  required  as  a 

qualification  for  office 6    - 

The   Senators  when  sitting  to  try  impeachment 
shall  be  on i 

Objections.  It  he  shall  not  approve  it,  the  President 
shall  return  the  bill  to  the  House  in  which  it 
originated  with  his i 

Obligation  of  contracts.     No  State  shall  pass  any  ex 

post  facto  law,  or  law  impairing  the 11 

Obligations  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States  to  be  held  illegal  and 
void.     All  debts  or.     [Amendments]  ....     14       4     — 

Offense.     No  person  shall  be  twice  put  in  jeopardy  of 

life  or  limb  for  the  same.     [Amendments]    .     .       5     - 

Offenses  against  the  law  of  nations.     Congress  shall 

provide  for  punishing i 

Offenses  against  the  United  States,  except  in  cases  of 
impeachment.  The  President  may  grant  re- 
prieves or  pardons  for 2       2       i     363 

Office  under  the  United  States.  No  person  shall  be 
a  member  of  either  House  while  holding  any 
civil I       6       2     351 


3 

Zl\ 

3 

371 

6 

349 

2 

351 

I 

358 

- 

3S3 

- 

375 

0 

3S5 

422        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 

Office.  No  Senator  or  Representative  shall  be  ap- 
pointed to  any  office  under  the  United  States 
which  shall  have  been  created,  or  its  emolu- 
ments increased,  during  the  term  for  which  he 

is  elected i       6       2     351 

Or  title  of  any  kind  from  any  king,  prince,  or  for- 
eign State  without  the  consent  of  Congress. 
No  person  holding  any  otiice  under  the  United 
States  shall  accept  of  any  present,  emolument  .198     358 

Office  of  President,  in  case  of  his  removal,  death,  res- 
ignation, or  inability,  shall  devolve  on  the  Vice- 
President.     The  powers  and  duties  of  the    .     .       2       i       5     363 

Office  during  the  term  of  four  years.     The  President 

and  Vice-President  shall  hold 2       i       i     361 

Of  trust  or  profit  under  the  United  States  shall 
be  an  elector  for  President  and  Vice-President. 
No  person  holding  an 2       I       2     361 

Office,  civil  or  military  under  the  United  States,  or  any 
State  who  had  taken  an  oath  as  a  legislative, 
executive,  or  judicial  officer  of  the  United 
States,  or  of  any  State,  and  afterwards  engaged 
in  insurrection  or  rebellion.  No  person  shall 
be  a  Senator,  Representative  or  Presidential 
elector,  or  hold  any.     [Amendments]  ....     14      3    —    383 

Officers  in  the  President  alone,  in  the  courts  of  law,  or 
in  the  heads  of  Departments.  Congress  may 
vest  the  appointment  of  inferior 2       2       2     364 

Officers  of  the  United  States  shall  be  removed  on 
impeachment  for  and  conviction  of  treason, 
bribery,  or  other  high  crimes  and  misdemeanors. 
The  President,  Vice-President,  and  all  civil .     .       24     —    365 

Officers.     The  House  of  Representatives  shall  choose 

their  Speaker  and  other i       2       5     348 

The  Senate,  in  the  absence  of  the  Vice-President, 
shall  choose  a  President  pro  tempore,  and  also 
their  other i       3       5     349 

Offices  becoming  vacant  •  in  the  recess  of  the  Senate 
may  be  filled  by  the  President,  the  commissions 
to  expire  at  the  end  of  the  next  session    ...       2       2       3     364 

Otie-fiftk  of  the  members  present,  be  entered  on  the 
journal  of  each  House.  The  yeas  and  nays 
shall,  at  the  desire  of i       5       3     350 

Opinion  of  the  principal  officers  in  each  of  the  Execu- 
tive Departments  on  any  subject  relating  to 
their  duties.  The  President  may  require  the 
written ;     •     •       ^       ^       i     3^3 

Order,  resolution,  or  vote  (except  on  a  question  of 
adjournment),  requiring  the  concurrence  of  the 
two  Houses,  shall  be  presented  to  the  Presi- 
dent.    Every i       7       3     35^ 

Original  jurisdiction  in  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  in  whicli 
a  State  may  be  a  party.  The  Supreme  Court 
shall  have 3      2       2     367 


OF   THE   UNITED    STATES  423 

Art.    Sec.    CI.    Page 
Overt  act,  or  on  confession  in  open  court.     Conviction 
of  treason  shall  be  on  the  testimony  of   two 
witnesses  to  the 3      3       i     368 

P. 

Pardons,  except  in  cases  of  impeachment.  The  Presi- 
dent may  grant  reprieves  and 2       2       I     363 

Patent  rights  to  inventors.     Congress  may  pass  laws 

for  securing I       8      8     354 

Peace.  Members  of  Congress  shall  not  be  privileged 
from  arrest  for  treason,  felony,  and  breach  of 

the I       6       I     350 

No  State  shall,  without  the  consent  of  Congress, 

keep  troops  or  ships  of  war  in  time  of      .     .     .       i      10       3     361 
No  soldier  shall  be  quartered  in  any  house  without 
the  consent  of  the  owner  in  time  of.     [Amend- 
ments]   _ 3     —    —    374 

Pensions  and  bounties,  shall  not  be  questioned.  The 
validity  of  the  public  debt  incurred  in  suppress- 
ing insurrection  and  rebellion  against  the  United 
States,  including  the  debt  for.     [Amendments]      14       4    —     383 

Pennsylvania  entitled  to  eight  Representatives  in  the 

J"irst  Congress i       2       3     348 

People  peaceably  to  assemble  and  petition  for  redress 
of  grievances  shall  not  be  abridged  by  Congress, 

The  right  of  the.     [Amendments] i     —    —    374 

To  keep  and  bear  arms  shall  not  be  infringed.  A 
well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  State,  the  right  of  the.  [Amend- 
ments]   2     —    —     374 

To  be  secure  in  their  persons,  houses,  papers,  and 
effects  against  unreasonable  searches  and  seiz- 
ures shall  not  be  violated.     The  right  of  the. 

[Amendments] 4     —    —     375 

The  enumeration  of  certain  rights  in  the  Constitu- 
^         tion  shall  not  be  held  to  deny  or  disparage  others 

retained  by  the.     [Amendments] 9    —     —     377 

Powers  not  delegated  to  the  United  States,  nor 
prohibited  to  the  States,  are  reserved  to  ihe 
States  or  to  the.     [Amendments] 10    —    —     377 

Perfect  Union,  etc.     To  establish  a  more.     [Preamble]     —    —    —     347 

Persons,  houses,  papers,  and  effects  against  unreason- 
able searches  and  seizures.  The  people  shall 
be  secure  in  their.     [Amendments]       ....       4     —    —     375 

Persons  as  any  State  may  think  proper  to  admit,  shall 
not  be  prohibited  prior  to  1808.     The  migration 

or  importation  of  such i       9       i     356 

But  a  tax  or  duty  of  ten  dollars  shall  be  imposed 
on  the  imijortation  of  each  of  such       ....       i       9       i     356 

Petition  for  the  redress  of  grievances.  Congress  shall 
make  no  law  abridging  the  right  of  the  people 
peaceably  to  assemble  and  to.     [Amendments]       i     —    —    374 


424        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 

Piracies  and  felonies  committed  on  the  high  seas.  Con- 
gress shall  define  and  punish I       8     lo     355 

Place  than  that  in  which  the  two  Houses  shall  be  sit- 
ting. Neither  House  during  the  session  shall, 
without  the  consent  of  the  other,  adjourn  for 
more  than  three  days,  nor  to  any  other      ...       i       54     35° 

Places  of  choosing  Senators.  Congress  may  by  law  make 
or  alter  regulations  for  the  election  of  Senators 
and  Representatives,  except  as  to  the  ....       I       4       i     349 

Ports  of  one  State  over  those  of  another.  Preference 
shall  not  be  given  by  any  regulation  of  commerce 
or  revenue  to  the i       9      6     357 

Ports.     Vessels  clearing  from  the  ports  of  one  State 

shall  not  pay  duties  in  another i       9      6     357 

Post-offices  and  post-roads.     Congress  shall  establish      .187     354 

Poiuers  herein  granted  shall  be  vested  in  Congress.   All 

legislative i        i     —     347 

Powers  vested  by  the  Constitution  in  the  Government 
or  in  any  Department  or  officer  of  the  United 
States.  Congress  shall  make  all  laws  necessary 
to  carry  into  execution  the I       8     18     356 

Powers  and  duties  of  the  office  shall  devolve  on  the 
Vice-President  on  the  removal,  death,  resigna- 
tion, or  inability  of  the  President.     The  ...       2       I       5     363 

Powers  not  delegated  to  the  United  States  nor  pro- 
hibited to  the  States  are  reserved  to  the  States 
and  to  the  people.  [Amendments]  ....  10  —  —  377 
The  enumeration  of  certain  rights  in  this  Consti- 
tution shall  not  be  held  to  deny  or  disparage 
others  retained  by  the  people.     [Amendments]        9    —    —     377 

Preference,  by  any  regulation  of  commerce  or  revenue, 
shall  not  be  given  to  the  ports  of  one  State  over 
those  of  another i       9      6     357 

Prejudice  any  claims  of  the  United  States  or  of  any 
particular  State  respecting  the  territory  or  prop- 
erty of  the  United  States.  Nothing  in  this 
Constitution  shall 4       3       2     370 

Present,  emolument,  office,  or  title  of  any  kind  what- 
ever from  anv  king,  prince,  or  foreign  State. 
No  person  holding  any  office  under  the  United 
States,  shall  without  the  consent  of  Congress, 
accept  any i       9      8     358 

Presentfiient  or  indictment  of  a  grand  jury,  except  in 
cases  arising  in  the  land  or  naval  forces  or  in 
the  militia  when  in  actual  service.  No  person 
shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime  unless  on  a.  [Amend- 
ments]          5    —    —    375 

President  of  the  United  States.  The  Senate  shall  choose 
a  President  pro  tempore  when  the  Vice-Presi- 
dent shall  exercise  the  office  of i       3       5     349 

The  Chief  Justice  shall  preside  upon  the  trial  of 

the I       3      6    349 


OF   THE   UNITED    STATES 


425 


Art.    Sec.    CI.    Page 
President  of  the  United  States  shall  approve  and  sign 
all  bills  passed  by  Congress  before  they  shall 
become  laws i       7       2     351 

Shall  return  to  the  House  in  which  it  originated, 
with  his  objections,  any  bill  which  he  shall  not 
approve i       7       2     351 

If  not  returned  within  ten  days  (Sundays  excepted) 
it  shall  become  a  law,  unless  Congress  shall  ad- 
journ before  the  expiration  of  that  time    ...       I       7       2     351 

Every  order,  resolution,  or  vote  which  requires  the 
concurrence  of  both  Houses,  except  on  a  ques- 
tion of  adjournment,  shall  be  presented  to  the         i       7       3     35^ 

If  disapproved  by  him,  shall  be  returned  and  pro- 
ceeded on  as  in  the  case  of  a  bill I       7       3     351 

The  executive  power  shall  be  vested  in  a      .     .     .       2       i       i     361 

He  shall  hold  his  office  during  the  term  of  four  years       211     361 

In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  dis- 
charge the  duties  of  his  office,  the  Vice-Presi- 
dent shall  perform  the  duties  of 2       I       5     363 

Congress  may  declare,  by  law,  in  the  case  of  the 
removal,  death,  resignation,  or  inability  of  the 
President,  what  officer  shall  act  as 2       i       5     363 

The  President  shall  receive  a  compensation  which 
shall  not  be  increased  nor  diminished  during  his 
term,  nor  shall  he  receive  any  other  emolument 
from  the  United  States 2       i       6     363 

Before  he  enters  upon  the  execution  of  his  office 

he  shall  take  an  oath  of  office 2       i       7     363 

Shall  be  Commander  in  Chief  of  the  Army  and 
Navy,  and  of  the  militia  of  the  States  when 
called  into  actual  service 2       2       i     363 

He  may  require  the  opinion,  in  writing,  of  the 
principal  officer  in  each  of  the  Executive  De- 
partments              2       2       I     363 

He  may  grant  reprieves  or  pardons  for  offenses, 
except  in  cases  of  impeachment 2       2       i     363 

He  may  make  treaties,  by  and  with  the  advice  and 
consent  of  the  Senate,  two-thirds  of  the  Sena- 
tors present  concurring 2       2       2     364 

He  may  appoint,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  whose  appointments 
may  be  authorized  by  law  and  not  herein  pro- 
vided for 2       2       2     364 

Congress  may  vest  the  appointment  of  inferior 

officers  in  the 2       2       2     364 

He  may  fill  up  all  vacancies  that  may  happen  in 
the  recess  of  the  Senate  by  commissions  which 
shall  expire  at  the  end  of  their  next  session  ..223     364 

He  shall  give  information  to  Congress  of  the  state 
of  the  Union,  and  recommend  measures  ...       2       3     —     364 


lee. 

CI.  Page 

3 

—  364 

3 

-  364 

3 

—  364 

3 

-  364 

3 

—  364 

4 

-  365 

I 

4  362 

426        INDEX   TO    THE    CONSTITUTION 

Art. 
President  of  the  United  States.     On  extraordinary  occa- 
sions he  may  convene  both  Houses  or  either 
House  of  Congress 2 

In  case  of  disagreement  between  the  two  Houses 
as  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  may  think  proper    .     .       2 

He  shall  receive  ambassadors  and  other  public 
ministers 2 

He  shall  take  care  that  the  laws  be  faithfully  exe- 
cuted      •       2 

He  shall  commission  all  the  ofificers  of  the  United 
States 2 

Shall  be  removed  from  office  on  impeachment  for, 
and  conviction  of,  treason,  bribery,  or  other 
high  crimes  and  misdemeanors 2 

No  person  except  a  natural-born  citizen  or  a  citi- 
zen of  the  United  States  at  the  adoption  of  the 
Constitution  shall  be  eligible  to  the  office  of      .       2 

No  person  who  shall  not  have  attained  the  age  of 
thirty-five  years  and  been  fourteen  years  a  citi- 
zen of  the  United  States  shall  be  eligible  to  the 

office  of 2       1       4     362 

President  and  Vice-President.  Manner  of  choosing. 
Each  State,  by  its  legislature,  shall  appoint  a 
number  of  electors  equal  to  the  whole  number 
of  Senators  and  Representatives  to  which  the 
State  may  be  entitled  in  the  Congress  ....       2       i       2     361 

No  Senator  or  Representative  or  person  hold- 
ing an  office  of  trust  or  profit  under  the  United 
States  shall  be  an  elector 2       i       2     361 

Congress  may  determine  the  time  of  choosing  the 
electors  and  the  day  on  which  they  shall  give 
their  votes,  which  day  shall  be  the  same  through- 
out the  United  States 2       i       3     362 

The  electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  President  and  Vice-Presi- 
dent, one  of  whom,  at  least,  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves. 
[Amendments] 12     —     —     37S 

They  shall  name  in  distinct  ballots  the  person 
voted  for  as  President  and  the  person  voted 
for  as  Vice-President.     [Amendments]      ...     12     —    —     37S 

They  shall  make  distinct  lists  of  the  persons  voted 
for  as  President  and  as  Vice-President,  which 
they  shall  sign  and  certify  and  transmit  sealed 
to  the  President  of  the  Senate  at  the  seat  of 
government.     [Amendments] 12    —    —    37S 

The  President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then 
be  counted.     [Amendments] 12     —    —     37S 

The  person  havnig  the  greatest  number  of  votes 
shall   be   the   President,   if   such   number  be  a 


OF   THE   UNITED    STATES  427 

Art.   Sec.    CI.    Page 
majority  of  the  whole  number  of  electors  ap- 
pointed.    [Amendments] I2     —    —     378 

Presidetit  and  Vice-Preside7it.  Mantier  of  choosing. 
If  no  person  have  such  majority,  then  from  the 
persons  having  the  liighest  numbers,  not  exceed- 
ing three,  on  the  list  of  those  voted  for  as  Presi- 
dent, the  House  of  Representatives  shall  choose 
immediately,  by  ballot,  the  President.  [Amend- 
ments]  12     —    —     378 

In  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each 
State  having  one  vote.  [Amendments]  ...  12  —  —  378 
A  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  States, 
and  a  majority  of  all  the  States  shall  be  neces- 
sary to  a  choice.     [Amendments] 12     —    —     378 

But  if  no  choice  shall  be  made  before  the  4th  of 
March  next  following,  then  the  Vice-President 
shall  act  as  President,  as  in  the  case  of  the  death 
or  disability  of  the  President.     [Amendments]     12     —    —     378 

President  of  the  Senate,  but  shall  have  no  vote  unless 
the  Senate  be  equally  divided.  The  Vice-Presi- 
dent shall  be I       3      4     349 

President  pro  tempore.     In   the  absence  of  the  Vice- 
President  the  Senate  shall  choose  a     .     .     .     .       i       3       5     349 
When  the  Vice-President  shall  exercise  the  ofBce 
of  President  of  the  United  States,  the  Senate 
shall  choose  a I       3       5     349 

Press.  Congress  shall  pass  no  law  abridging  the  free- 
dom of  speech  or  of  the.     [Amendments]     .     .       i     —    —     374 

Previous  condition  of  servitude.  The  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States,  or  by  any  State, 
on  account  of  race,  color,  or.     [Amendments]  .15       i     —     3S4 

Private  property  shall  not  be  taken  for  public  use  with- 
out just  compensation.     [Amendments]    ...       5     —    —     375 

Privilege.  Senators  and  Representatives  shall,  in  all 
cases  except  treason,  felony,  and  breach  of  the 
peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective 
Houses,  and  in  going  to  and  returning  from  the 

same i       6       i     350 

They  shall   not  be  questioned  for  any  speech  or 

debate  in  either  House  in  any  other  place     ..161     350 

Privileges  and  immunities  of  citizens  of  the  United  States. 
The  citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  the  citizens 

of  the  several  States 4       2       i     369 

No  soldier  shall  be  quartered  in  any  house  with- 
out the  consent  of  the  owner  in  time  of  peace. 

[Amendments] 3    —    —     374 

No  person  shall  be  twice  put  in  jeopardy  of  life 

or  limb  for  the  same  offense.     [Amendments]  .       5     —    —     375 


428         INDEX    TO    THE    CONSTITUTION 

Art.    Sec.   CI.    Page 

Privileges  and  immunities  of  citizens  of  the  United  States. 

All    persons    born    or   naturalized   in   the    United 

States,  and  subject  to  the  jurisdiction  thereof, 

are   citizens   of    the   United   States   and  of  the 

State  in  which  they  reside.     [Amendments]       .14       I     —     380 

No   State  shall  make  or  enforce  any  law  which 

shall  abridge  the.     [Amendments]    .....     14       i     —     380 
No  State  shall  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law.  [Amend- 
ments]  .  ' 14       I     —     380 

Nor  deny  to  any  person  within  its  jurisdiction  the 

equal  protection  of  its  laws.     [Amendments]    .14       i     —     3S0 
Prizes   captured    on   land    or   water.     Congress   sliall 

make  rules  concerning i       811     355 

Probable  cause.  The  right  of  the  people  to  be  secure 
in  their  persons,  houses,  papers,  and  effects 
against  unreasonable  searches  and  seizures  shall 
not  be  violated,  and  no  warrant  shall  issue  for 

such  but  upon.     [Amendments] 4     —    —     375 

Process  of  law.  No  person  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property  with- 
out due.     [Amendments] 5     —     —     375 

No  State  shall  deprive  any  person  of  life,  liberty, 

or  property  without  due.     [Amendments]     .     .     14       i     —     3S0 
Process  for   obtaining   witnesses   in  his  favor.     In  all 
criminal   prosecutions  the  accused  shall  have. 

[Amendments] 6    —    —     376 

Progress  of  science  and  useful  arts.     Congress  shall 

have  power  to  promote  the i       8       8     354 

Property  of  the  United  States.  Congress  may  dispose 
of  and  make  all  needful  rules  and  regulations 

respecting  the  territory  or 4       3       2     370 

Property  without  due  process  of  law.  No  person  shall 
be  compelled  in  any  criminal  case  to  be  a  wit- 
ness against  himself;  nor  shall  he  be  deprived 
of  his  life,  liberty,  or.  [Amendments]  ...  5  —  —  375 
No  State  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States,  nor  deprive  any 
person  of  his  life,  liberty,  or.  [Amendments]  .14  i  —  3S0 
Prosecutions.     The  accused   shall  have  a  speedy  and 

public  trial  in  all  criminal.     [Amendments]      .       6    —    —     376 
He  shall  be  tried  by  a  jury  in  the  State  or  dis- 
trict where  the  crime  was  committed.    [Amend- 
ments]   6    —    —     376 

He  shall  be  informed   of  the    nature  and  cause 

of  the  accusation.     [Amendments] 6    —    —    376 

He  shall  be  confronted  with  the  witnesses  against 

him.      [Amendments] 6     —     —     376 

He  shall  have  compulsory  process  for  obtaining 

witnesses.     [Amendments] 6     —     —     376 

He  shall  have  counsel  for  his  defense.     [Amend- 
ments]    6    —    —    376 


OF   THE   UNITED    STATES  429 

Art.    Sec.    CI.    Page 

Protection  of  the  laws.  No  State  shall  deny  to  any  per- 
son within  its  jurisdiction  the  equal.  [Amend- 
ments]   ■     .     • 14       I     —     380 

Public  debt  of  the  United  States  incurred  in  suppress- 
ing insurrection  or  rebellion  shall  not  be  ques- 
tioned.    The  validity  of  the.     [Amendments]    .14      4    —     383 

Public  safety  may  require  it.  The  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of 
rebellion  or  invasion  the I       9       2     357 

Public  trial  hy  ]\irY.     In  all  criminal  prosecutions  the 

accused  shall  have  a  speedy  and.  [Amendments]       6    —    —    376 

Public  use.     Private   property   shall  not  be  taken  for, 

without  just  compensation.      [Amendments]     .       5     —     —     375 

Punishmoit  according  to  law.  Judgment  in  cases  of 
impeachment  shall  not  extend  further  than  to 
removal  from,  and  disqualification  for,  office; 
but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment, 
and - I       3       7     349 

Punishments  inflicted.  Excessive  bail  shall  not  be  re- 
quired nor  excessive  fines  imposed  nor  cruel  and 
unusual.     [Amendments] 8    —    —    377 


Qualification  for  ofiice.     No  religious  test  shall  ever  be 

required  as  a 6    —       3     371 

Qualifications  of  electors  of  members  of  the  House  of 
Representatives  shall  be  the  same  as  electors 
for  the  most  numerous  branch  of  the  State 
legislature I       2       i     347 

Qualifications  of  members  of  the  House  of  Representa- 
tives. They  shall  be  twenty  five  years  of  age, 
seven  years  a  citizen  of  the  United  States,  and 
an  inhabitant  of  the  State  in  which  chosen     ..122     348 

Qualifications  of  Senators.     They  shall  be  thirty  years 
of  age,  nine  years  a  citizen  of  the  United  States, 
and  an  inhabitant  of  the  State  in  which  chosen       ^       Z      Z     349 
Of  its  own  members.     Each    House  shall  be  the 

judge  of  the  election,  returns,  and I       5       i     350 

Of  the  President.  No  person  except  a  natural- 
born  citizen,  or  a  citizen  of  the  United  States 
at  the  time  of  the  adoption  of  the  Constitution, 
shall  be  elegible  to  the  office  of  President  ..214  362 
Neither  shall  any  person  be  eligible  to  the  office 
of  President  who  shall  not  have  attained  the 
age  of  thirty-five  years,  and  been  fourteen  years 
a  resident  within  the  United  States  ....  2  i  4  362 
Of  -the  Vice-President.  No  person  constitution- 
ally ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President.  [Amend- 
ments]   12    —    —     378 


430        INDEX   TO    THE    CONSTITUTION 

Art.    Sec.   CI.   Page 
Quartered  in  any  house  without  the  consent  of  the 
owner  in  time  of  peace.     No  soldier  shall  be. 

[Amendments] 3     —    —     374 

Quorum  to  do  business.     A  majority  of   each  House 

shall  constitute  a i       5       i     350 

But  a  smaller  number  than  a  quorum  may  ad- 
journ from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members  .151  350 
Of  the  House  of  Representatives  for  choosing  a 
President  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice. 

[Amendments] 12     —    —     378 

Quorum  to  elect  a  Vice-President  by  the  Senate. 
Two-thirds  of  the  whole  number  of  Senators 

shall  be  a.     [Amendments] 12     —    —     378 

A  majority  of  the  whole  number   shall  be  neces- 
sary to  a  choice.     [Amendments] 12    —    —    378 

R. 

Race,  color,  or  previous  condition  of  servitude.  The 
right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of.  [Amend- 
ments]   15       1     —     384 

Ratification  of  amendments  to  the  Constitution  shall 
be  by  the  legislatures  of  three-fourths  of  the 
several  States  orby  conventions  in  three-fourths 
of  the  States,  accordingly  as  Congress  may  pro- 
pose  5    —    —    V^ 

Ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  to  estabhsh  the  Constitution  between 
the  States  so  ratifying  the  same 7     —    —     372 

Ratio  of  representation  until  the  first  enumeration 
under  the  Constitution  shall  be  made  not  to 
exceed  one  for  every  thirty  thousand  ....       I       2       3     348 

Ratio  of  representation  shall  be  apportioned  among  the 
several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  per- 
sons in  each  Slate,  excluding  Indians  not  taxed. 
[Amendments] 14       2     —     382 

Ratio.  But  when  the  right  to  vote  for  Presidential 
electors  or  members  of  Congress,  or  the  legis- 
lative,executive,  and  judicial  officers  of  the  State, 
except  for  engaging  in  rebellion  or  other  crime, 
shall  be  denied  or  abridged  by  a  State,  the  basis 
of  representation  shall  be  reduced  therein  in 
the  proportion  of  such  denial  or  abridgment  of 
the  right  to  vote.     [Amendments] 142      —    382 

Rebellion  against  the  United  States.  Persons  who, 
while  holding  certain  Federal  and  State  offices, 


OF    THE    UNITED    STATES  431 

Art.    Sec.   CI.    Page 
took  an  oath  to  support  the  Constitution,  after- 
wards engaged  in  insurrection  or  rebellion,  dis- 
abled   from    holding    office    under   the   United 
States.     [AmendmentsJ 14      3     —     3^3 

Rebellion  against  the  United   States.     But  Congress 
may  by  a  vote  of  two-thirds  of  each  House  re- 
move such  disability.     [.Amendments].     ...     14       3     —     3S3 
Debts    incurred    for    pensions    and    bounties  for 
services  in  suppressing  the  rebellion  shall  not 

be   questioned.     [Amendments] 14      4    —     3^3 

All  debts  and  obligations  incurred  in  aid  of 
the  rebellion,  and  all  claims  for  the  loss  or  eman- 
cipation of  slaves,  declared  and  held  to  be  ille- 
gal and  void.     [Amendments] 14       4    —     3^3 

Rebellion  or  invasion.  The  writ  of  habeas  corpus  shall 
not  be  suspended  e.\cept  when  the  public  safety 
may  require  it  in  cases  of I       9       ^     357 

Receipts  and  expenditures  of  all  public  money  shall  be 
published  from  time  to  time.  A  regular  state- 
ment of I       9       7     358 

Recess  of  the  Senate.  The  President  may  grant  com- 
missions, which  shall  expire  at  the  end  of  the 
next  session,  to  fill  vacancies  that  may  happen 
during  the _  .     •       2       2       3     364 

Reconsideration  of  a  bill  returned  by  the  President 
with  his  objections.  Proceedings  to  be  had 
upon  the I       7       2     351 

Records,  and  judicial  proceedings  of  every  other  State. 
Full  faith  and  credit  shall  be  given  in  each  State 

to  the  acts •       4       1     —     368 

Congress  shall  prescribe  the  manner  of  proving 

such  acts,  records,  and  proceedings     ....       4       i     —     368 

Redress  of  s^riezninces.  Congress  shall  make  no  law 
abridging  the  right  of  the  people  peaceably  to 
assemble  and  to  petition  for  the.  [Amend- 
ments],   ........       I     —    —     374 

Regulations,  except  as  to  the  places  of  choosing  Sena- 
tors, The  time,  places,  and  manner  of  holding 
elections  for  Senators  and  Representatives 
shall  be  prescribed  by  the  legislatures  of  the 
States,  but  Congress  may  at  any  time  by  law 
make  or  alter  such I       4       ^     349 

Retaliations  of  commerce  or  revenue.  Preference  to 
the  ports  of  one  State  over  those  of  another 
shall  not  be  given  by  any i       9       6    357 

Religion  or  prohibiting  the  free  exercise  thereof.  Con- 
gress shall  make  no  law  respecting  the  estab- 
lishment of.     [Amendments] I     —     —     374 

Religious  test  shall  ever  be  required  as  a  qualification 
for  any  office  or  public  trust  under  the  United 
States.     No 6    —      3    37^ 

Removal  of  the  President  from  office,  the  same  shall 

devolve  on  the  Vice-President.     In  case  of  the       2       2       I     363 


432         INDEX    TO    THE    CONSTITUTION 

Art.    Sec.   CI.    Page 
Representation.     No  State,  without  its  consent,  shall 

be  deprived  of  its  equal  suffrage  in  the  Senate.       5     —    —     37° 
Representation  and  direct   taxation,  how   apportioned 
among  the  several  States.     [This   provision  is 
changed  by  the  fourteenth  amendment,  section 

2,  page  3S2] I       2       3     348 

Representation,  until  the  first  enumeration  under  the 
Constitution  not  to  exceed  one  for  every  thirty 

thousand.     The  ratio  of I       2       3     348 

Representation  in  any  State.  The  executive  thereof 
shall  issue  writs  of  election  to  fill  vacancies  in 

the I       2       4     348 

Representation  among  the  several  States  shall  be  ac- 
cording to  their  respective  numbers,  counting 
the    whole    number   of   persons  in  each  State, 
excluding   Indians   not  taxed.      The  ratio   of. 

[Amendments] 14       2     —     382 

Representation.  But  where  the  right  to  vote  in  cer- 
tain Federal  and  State  elections  is  abridged  for 
any  cause  other  than  rebellion  or  other  crime 
the  basis  of  representation  shall  be  reduced. 

[Amendments] •     '     '     \     '     '     ^^       ^  ^^ 

Representatives.     Congress  shall  consist  of   a   Senate 

and  House  of i       i     —     347 

Qualifications  of  electors  of  members  of  the  House 

of I       2       I     347 

No  person  shall  be  a  Representative  who  shall  not 
have  attained  the  age  of  twenty-five  years,  been 
seven  years  a  citizen  of  the  United  States,  and 
an  inhabitant  of  the  State  in  which  he  shall  be 

chosen I       2       2     348 

And  direct  taxes,  how  apportioned  among  the  sev- 
eral States.  [Amended  by  fourteenth  amend- 
ment, section  2,  page  382] i 

Shall  choose   their    Speaker    and    other  officers. 

The  House  of i 

Shall  have  the  sole  power  of  impeachment.     The 

House  of I 

Executives  of  the  State  shall  issue  writs  of  elec- 
tion to  fill  vacancies  in  the  House  of   ...     .        I 
The  time'^,  places,  and  manner  of  choosing  Rep- 
resentatives shall  be  prescribed  by  the  legisla- 
tures of  the  States i       4       i     349 

But  Congress  may  at  any  time  by  law  make  or 
alter  such  regulations   except  as  to  the  places 

of  choosing  Senators '       4       ^     349 

And  Senators  shall  receive  a  compensation  to  be 

ascertained  by  law ^       ^       *     35° 

Shall    in  all    cases,    except    treason,   felony,  and 

breach  of  the  peace,  be  privileged  from  arrest 

during  attendance  at  the  session  of  the  House, 

and  in  going  to  and  returning  from  the  same    .161     350 

Shall   not  be  questioned  in  any  other  place  for 


3 

34S 

5 

348 

5 

348 

4 

348 

6 

2 

351 

7 

I 

351 

I 

2 

S6i 

OF   THE   UNITED    STATES  433 

Art.    Sec.   CI.    Page 
any  speech  or  debate.     Members  of  the  House 
of I       6       I     350 

Jiepresentatives.  No  member  shall  be  appointed  dur- 
ing his  term  to  any  civil  otfice  which  shall  have 
been  created,  or  the  emoluments  of  which  shall 
have  been  increased,  during  such  term  ...  i  6  -  351 
No  person  holding  any  office  under  the  I'nited 
States  shall,   while    holding   such    office,  be  a 

member  of  the  House  of 

All  bills  for  raising  revenue  shall  originate  in  the 

House  of 

No  Senator  or  Representative  shall  be  an  elector 
for  President  or  Vice-I'resident 

Representatives  shall  be  bound  bv  an  oath  or  affirmation 
to  support  the  Constitution  of  the  United  States. 
The  Senators  and .       6    —       3     371 

Representatives  among  the  several  States.  Provisions 
relative  to  the  apportionment  of.  [Amend- 
ments]   ....         14 

Representatives  and  Senators.     Prescribing  certain  dis- 
qualifications for  office  as.     [Amendments]       .     14 
But  Congress  may,  by  a  vote  of  two-thirds  of  each 
House,  remove  such  disqualification.    [Amend- 
ments]     14 

Reprieves  and  pardons  except  in  cases  of  impeachment. 

The  President  may  grant 2 

Reprisal.     Congress  shall  have  power  to  grant  letters 

of  marque  and i 

No  State  shall  grant  any  letters  of  marque  and    .       i 

Republican  form  of  government.     The  United  States 

shall  guarantee  to  every  State  in  this  Union  a  4       4     —     37° 

And  shall  protect  each  of  them  against  invasion; 
and  on  the  application  of  the  legislature  or  of 
the  executive  (when  the  legislature  can  not  be 
convened),  against  domestic  violence    ....       4       4     —     370 

Reseri'ed  rights  of  the  States  and  the  people.  The  enu- 
meration in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people.  [Amendments!  ...  9  —  —  yi7 
The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States  respectively 
or  to  the  i)eople.      [Amendments] 10     —     —     377 

Resig>!ation,  or  inability  of  the  President,  the  duties  and 
powers  of  his  office  shall  devolve  on  the  Vice- 
President.     In  case  of  the  death 2       I        5     363 

Resignation,  or  inaliility  of  the  President.  Congress 
may  l)y  law  provide  for  the  case  of  the  removal, 
death 2       i       5     363 

Resohition,  or  vote   (except  on  a  question  of  adjourn- 
ment)   requiring    the    concurrence    of    the   two 
Houses  shall,  before  it  becomes  a  law,  be  pre- 
sented to  the  President.     Every  order      ...       i       7       3     351 
28 


2    — 

382 

3    — 

3S3 

3    — 

3S3 

2       I 

7><^l 

8     II 
0       I 

355 
35« 

434        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 

Revenue  shall  originate  in  the  House  of  Representa- 
tives.    All  bills  for  raising i       7       i     351 

Revenue.  Preference  shall  not  be  given  to  the  ports 
of  one  State  over  those  of  another  by  any  regu- 
lations of  commerce  or i       9       6     357 

Rhode  Island  entitled  to  one  Representative  in  the 

First  Congress i       2       3     348 

Ri^ht  of  petitton.  Congress  shall  make  no  law  abridg- 
ing the  right  of  the  people  peaceably  to  assemble 
and  to  petition  for  the  redress  of  grievances. 
[Amendments] i     —    —    374 

Right  to  keep  and  bear  arms.  A  well-regulated  militia 
being  necessary  to  the  security  of  a  free  State, 
the  right  of  the  people  to  keep  and  bear  arms 
shall  not  be  infringed.     [Amendments]     ...       2     —    —     374 

Rights  in  the  Constitution  shall  not  be  construed  to 
deny  or  disparage  others  retained  by  the  people. 
The  enumeration  of  certain.     [Amendments]  9    —    —     377 

Rights  not  delegated  to  the  United  States  nor  pro- 
hibited to  the  States  are  reserved  to  the  States 
respectively  or  to  the  people.     [Amendments]       10    —    —     377 

Rules  of  its  proceedings.     Each  House  may  determine 

the I       5       2     350 

Rules  and  regulations  respecting  the  territory  or  other 
property  of  the  United  States.  Congress  shall 
dispose  of  and  make  all  needful 7       3       2     370 

Rules  of  the  common  law.  All  suits  involving  over 
twenty  dollars  shall  be  tried  by  jury  according 

to  the.     [Amendments] 7     —    —     377 

No  fact  tried  by  a  jury  shall  be  re-examined  except 
according  to  the.     [Amendments] 7     —    —     377 


Science  and  the  useful  arts  by  securing  to  authors  and 
inventors  the  exclusive  right  to  their  writings 
and  discoveries.  Congress  shall  have  power  to 
promote  the  progress  of I       8       8     354 

Searches  and  seizures  shall  not  be  violated.  The  right 
of  the  people  to  be  secure  against  unreasonable. 
[Amendments] 4     —     —     375 

Searches  and  seizures.  And  no  warrants  shall  be 
issued  but  upon  probable  cause,  on  oath  or 
affirmation,  describing  the  place  to  be  searched 
and  the  person  or  things  to  be  seized.  [Amend- 
ments]        4     —     —     375 

Seat  of  government.     Congress  shall  exercise  exclusive 

legislation  in  all  cases  over  such  district  as  may        v 

become  the i       817     356 

Securities  and  current  coin  of  the  United  States.  Con- 
gress shall  provide  for  punishing  the  counter- 
feiting of  the I       8       6     354 


OF   TliE   UNITED    STATES 


435 


Art.   Sec.   CI.   Page 
Security  of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed.     A  well- 
regulated  militiabeing  necessaryto  the.  [Amend- 
ments]     2     —    —     374 

Senate  and  House  of  Representatives.     The  Congress  of 

the  United  States  shall  consist  of  a I        I     —     347 

Senate  of  the  United  States.  The  Senate  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen 
by  the  legislature  for  six  years i       3       I     348 

If  vacancies  happen  during  the  recess  of  the  leg- 
islature of  a  State,  the  executive  thereof  may 
make  temporary  appointments  until  the  next 
meeting  of  the  legislature i       3       2     349 

The  Vice-President  shall  be  President  of  the  Sen- 
ate, but  shall  have  no  vote  unless  the  Senate  be 
equally  divided I       3       4     349 

The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore  in  the  absence  of 
the  Vice-President  or  when  he  shall  exercise  the 
office  of  President I       3       5     349 

The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose 
they  shall  be  on  oath  or  affirmation        ....       I       3       6     349 

When  the  President  of  the  United  States  is  tried 
the  Chief  Justice  shall  preside;  and  no  person 
shall  be  convicted  without  the  concurrence  of 
two-thirds  of  the  members  present i       3       6     349 

It  shall  be  the  judge  of  elections,  returns,  and 

qualifications  of  its  own  members I       5       I     350 

A  majority  shall  constitute  a  quorum  to  do  busi- 
ness, but  a  smaller  number  may  adjourn  from 
day  to  day,  and  may  be  authorized  to  compel 
the  attendance  of  absent  members i        5       I     350 

It  may  determine  the  rules  of  its  proceedings, 
punish  a  member  for  disorderly  behavior,  and 
with  the  concurrence  of  two-thirds  expel  a 
member i       5      2     350 

It  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  except  such 
parts  as  may  in  their  judgment  require  secrecy         ^53     35° 

It  shall  not  adjourn  for  more  than  three  days 
during  a  session  without  the  consent  of  the 
other  House i       5      4     350 

It  may  propose  amendments  to  bills  for  raising 
revenue,  but  such  bills  shall  originate  in  the 
House  of  Representatives i       7       i     351 

The  Senate  shall  advise  and  consent  to  the  ratifi- 
cation of  all  treaties,  provided  two-thirds  of  the 
members  present  concur 2       2       2     364 

It  shall  advise  and  consent  to  the  appointment  of 
ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court  and  all  other  offi- 
cers not  herein  otherwise  provided  for      ...       2       2       2     364 


436         INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 
Senate  of  the  United  States.      It  may  be  convened  by  the 

President  on  extraordinary  occasions    ....       2       3    —     364 

No  State,  without  its  consent,  shall  be  deprived  of 

its  equal  suffrage  in  the  Senate 5     —    —     370 

Senators  shall,  immediately  after  assembling,  under 
their  first  election,  be  divided  into  three  classes, 
so  that  the  seats  of  one-third  shall  become 
vacant  at  the  expiration  of  every  second  year    .132     349 

No  person  shall  be  a  Senator  who  shall  not  be 
thirty  years  of  age,  nine  years  a  citizen  of  the 
United  States,  and  an  inhabitant  when  elected 
of  the  State  for  which  he  shall  be  chosen      •     •       i       3       3     349 

The  times,  places,  and  manner  of  choosing  Sena- 
tors may  be  fixed  by  the  legislature  of  a  State, 
but  Congress  may  by  law  make  or  altar  such 
regulations  except  as  to  the  places  of  choos- 
ing   . I       4      I     349 

If  vacancies  happen  during  the  recess  of  the  legis- 
lature of  a  State,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting 
of  the  legislature i       3       2     349 

They  shall  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  the 
Senate  and  in  going  to  and  returning  from  the 

same i       6       i     350 

Senators  and  Representatives  shall  receive  a  compen- 
sation to  be  ascertained  by  law i       6       I     350 

Senators  and  Representatives  shall  not  be  ques- 
tioned for  any  speech  or  debate  in  either  House 
in  any  other  place i       6       i     850 

No  Senator  or  Representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  United  States  which 
shall  have  been  created,  or  of  which  the  emolu- 
ments shall  have  been  increased,  during  such 

term i       6      2     351 

No  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  House  dur- 
ing his  continuance  in  office i       6       2     351 

No  Senator  or  Representative  or  person  holding 
an  office  of  trust  or  profit  under  the  United 
States  shall  be  an  elector  for  President  and 
Vice-President 2       1       2     361 

Senators  and  Representatives  shall  be  bound  by  an 

oath  or  affirmation  to  support  the  Constitution  .       6    —       3     371 

No  person  shall  be  a  Senator  or  Representative 
who  having,  as  a  Federal  or  State  officer,  taken 
an  oath  to  supjiort  the  Constitution,  afterwards 
engaged  in  rebellion  against  the  United  States. 
[Amendments] 14      3     —     383 

But  Congress  may,  by  a  vote  of  two-thirds  of  each 

House,  remove  such  disability.     [Amendments]     14       3     —     383 


OF   THE    UNITED    STATES  437 

Art.    Sec.    CI.    Page 

Service  or  labor  in  one  State,  escaping  into  another 
State,  shall  be  delivered  up  to  the  party  to 
whom  such  service  or  labor  may  be  due.  Fugi- 
tives from 4       2       3     369 

Servitude^  except  as  a  punishment  for  crime,  whereof 
the  party  shall  have  been  duly  convicted,  shall 
exist  in  the  United  States  or  any  place  subject 
to  their  jurisdiction.  Neither  slavery  nor  in- 
voluntary.    [Amendments] 13       i     —    380 

Servitude.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of 
race,  color,  or  previous  condition  of.  [Amend- 
ments]     15       I     —     384 

Ships  of  war  in  time  of  peace,  without  the  consent  of 

Congress.     No  State  shall  keep  troops  or     .     .       i     10       3     361 

Silver  coin  a  tender  in  payment  of  debts.     No  State 

shall  make  anything  but  gold  and i     10       i     35S 

Slave.  Neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion,  or  any  claim 
for  the  loss  or  emanicipation  of  any.  [Amend- 
ments]    14       4     —     383 

Slavery  nor  involuntary  servitude,  except  as  a  punish- 
ment for  crime,  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  in  the  United 
States,  or  any  places  subject  to  their  jurisdiction. 
Neither.     [Amendments] 13       i     —     380 

Soldiers  shall  not  be  quartered,  in  time  of  peace,  in 
any  house  without  the  consent  of  the  owner. 
[Amendments] 3 

South  Carolina  entitled  to  five  representatives  in  the 

First  Congress I 

Speaker  and  other  officers.  The  House  of  Representa- 
tives shall  choose  their i 

Speech  or  of  the  Press.     Congress  shall  make  no  law 

abridging  the  freedom  of.     [Amendments]    .     .       i 

Speedy  and  public  trial  by  a  jury.  In  all  criminal 
prosecutions  the  accused  shall  have  a.  [Amend- 
ments]     6 

Standard  of  weights  and  measures.     Congress  shall  fix 

the I 

State  of  the  Union.     The  President  shall,  from  time  to 

time,  give  Congress  information  of  the      ...       2 

State  legislatures,  and  all  executive  and  judicial  officers 
of  the  United  States,  shall  take  an  oath  to  sup- 
port the  Constitution.  All  members  of  the 
several 6    —       3     37' 

States.     When  vacancies  happen  in  the  representation 
from  any   State,  the  executive  authority  shall 
issue  writs  of  election  to  fill  such  vacancies  ..124     348 
Congress  shall  have  power  to  regulate  commerce 

among  the  several i       8       3     352 


— 

374 

3 

348 

5 

348 

— 

374 

- 

376 

5 

354 

— 

364 

lO 

I  358 

lO 

I  358 

lO 

I  358 

10 

I  358 

438        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 
States.    No  State  shall  enter  into  any  treaty,  alliance,  or 

confederation i 

Shall  not  grant  letters  of  marque  and  reprisal      .       i 

Shall  not  coin  money i 

Shall  not  emit  bills  of  credit i 

Shall  not  make  anything  but  gold  and  silver  coin 

a  tender  in  payment  of  debts i     10       i     358 

Shall  not  pass  any  bill  of  attainder,  ex  post  facto 

law,  or  law  impairing  the  obligation  of  contracts       I      10       I     358 

Shall  not  grant  any  title  of  nobility i     10       i     358 

Shall   not,  without  the    consent   of    Congress    lay 

any  duties  on  imports  or  exports,  except  what 

may  be  absolutely  necessary   for  executing  its 

inspection  laws i     10       2     360 

Shall  not,  without  the  consent    of  Congress,  lay 

any  duty  of  tonnage,  keep  troops  or  ships  of 

war  in  time  of  peace,  enter  into  any  agreement 

or  compact  with  another  State  or  with  a  foreign 

power,  or  engage  in  war  unless  actually  invaded 

or  in  such  imminent  danger  as  will  not  admit  of 

delay I      10       3     361 

Full  faith  and  credit  in  every  other  State  shall  be 

given  to  the  public  acts,  records,  and  judicial 

proceedings  of  each  State •       4       i     —     3^8 

Congress  shall  prescribe  the  manner  of  proving 

such  acts,  records,  and  proceedings 4       I     —     368 

Citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several 

States 4       2       i     369 

New  States  may  be  admitted  by  Congress  into 

this  Union _•       4       3       1     3^9 

But  no  new  State  shall  be  formed  or  erected  within 

the  jurisdiction  of  another  State 4       3       I     3^9 

Nor  any  State  formed  by  the  junction  of  two  or 

more  States  or  i)arts  of  States  without  the  con- 
sent of  the  legislatures  as  well  as  of  Congress  .       4       3       I     369 
No  State  shall  be  deprived,  without  its  consent, 

of  its  equal  suffrage  in  the  Senate S     —    —     Z7° 

Three-fourths  of  the  legislatures  of  the  States  or 

conventions  of  three-fourths   of  the   States,  as 

Congress   shall    prescribe,    may    ratify    amend- 
ments to  the  Constitution 5     —    —     37° 

The   United  States  shall  guarantee  a  republican 

form  of  government  to  every  State  in  the  Union  4  4  —  37° 
They  shall  protect  each  State  against  invasion  .44  —  370 
And   on    application    of    the    legislature,   or   the 

executive  [when  the  legislature  can  not  be  con- 
vened], against  domestic  violence 4       4    —     ZT^ 

The  ratification  by  nine  States  shall  be  sufficient 
to  establish  the  Constitution  between  the  States 

so  ratifying  the  same 7     —    —     372 

When  the  choice  of  President  shall  devolve  on 
the  House  of  Representatives,  the  vote  shall  be 
taken  by  States.     [Amendments] I3     — . —     378 


OF   THE   UNITED    STATES  439 

Art.  Sec  CI.  Page 
States      But  in  choosing  the  President  the  vote  shall 

be  taken  by  States,  the  representation  from  each 

State  liaving  one  vote.  [Amendments]  ...  12  —  —  378 
A  quorum  for  choice  of  President  shall  consist  of 

a  member  or  members  from  two-thirds  of  the 

States,  and  a  majority  of  all  the  States  shall  be 

necessary  to  a  choice.  [Amendments]  .  .  .  12  —  —  378 
States  or  to  the  people.     Powers  not  delegated  to  the 

United  States,  nor  prohibited  to  the  States,  are 

reserved  to  the.      [Amendments] 10     —     —     377 

Suffrage  in  the  Senate.     No  State  shall  be  deprived 

without  its  consent  of  its  equal 5     —     —     370 

Suits  at  common  law,  where  the  value  in  controversy 

shall   exceed  twenty  dollars,  shall  be  tried  by 

jury.     [Amendments] 7     —    —     377 

In  law  or  equity  against  one  of  the  States  by  citi- 
zens of  another  State  or  by  citizens  of  a  foreign 

State.    The  judicial  power  of  the  United  States 

shall  not  extend  to.  [Amendments]  ....  11  —  —  378 
Supreme  Court.  Congress  shall  have  power  to  consti- 
tute tribunals  inferior  to  the I       8       9     355 

Supreme  Court,  and  such  inferior  courts  as  Congress 

may    establish.     The    judicial    power    of    the 

United  States  shall  be  vested  in  one  ....  3  i  —  365 
The  judges  of  the  Supreme  and  inferior  courts 

shall  hold  their  offices  during  good  behavior  .31  —  365 
The   compensation    of   the  judges   shall    not   be 

diminished  during  their  continuance  in  office  31  —  365 
Supreme  Court  shall  have   original  jurisdiction  in  all 

cases  affecting  ambassadors,  other  public  mir.is- 

ters  and  consuls,  and  in  which  a  State  may  be 

a  party.     The 3       2       2     367 

Shall  have  appellate  jurisdiction,  both  as  to  law 

and  fact,  with  such  exceptions  and  regulations 

as  Congress  may  make.     The 3       2       2     367 

Supreme  law  of  the  land.     This  Constitution,  the  laws 

made  in  pursuance  thereof,  and  the  treaties  of 

the  United  States  shall  be  the 6     —       2     371 

The  judges  in  every  State  shall  be  bound  thereby  6  —  2  371 
Suppress  insurrections,  and  repel  invasions.    Congress 

shall  provide  for  calling  forth  the  militia  to  exe- 
cute the  laws I       815     355 

Suppression  of  insurrection   or  rebellion,  shall  not  be 

questioned.      The   public   debt,  including   the 

debt  for  pensions  and  bounties  incurred  in  the. 

[Amendments] 14      4    —    383 


Tax  shall  be  laid  unless  in  proportion  to  the  census  or 

enumeration.     No  capitation  or  other  direct      .194     357 
Tax  or  duty  shall  be  laid  on  articles  exported  from 

any  State.     No I       9       S     357 


440         INDEX    TO    THE    CONSTITUTION 

Art.    Sec.   CI.    Page 

Taxes  (direct)  and  Representatives,  how  apportioned 
among  the  several  States.  [See  fourteenth 
amendment,  section  2,  page  382] I       2       3     348 

Taxes,  duties,  imposts,  and  excises.     Congress  shall 

have  power  to  lay i       8       i     351 

They  shall   be    uniform   throughout   the    United 

States I       8       i     351 

Tetnporary  appointments  until  the  next  meeting  of  the 
legislature.  If  vacancies  happen  in  the  Senate 
in  the  recess  of  the  legislature  of  a  State,  the 
e.xecutive  of  the  State  shall  make i       3       2     349 

Tender  in  payment  of  debts.  No  State  shall  make  any- 
thing but  gold  and  silver  coin  a i     10       i     358 

Term  0/ four  years.    The  President  and  Vice-President 

shall  hold  their  offices  for  the 2       i       i     361 

Te)?n  for  which  he  is  elected.  No  Senator  or  Repre- 
sentative shall  be  appointed  to  any  office  under 
the  United  States  which  shall  have  been  created 
or  its  emoluments  increased  during  the     ...        162     351 

Territory  or  other  property  of  the  United  States.  Con- 
gress shall  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the 4       3       2     370 

Test  as  a  qualification  for  any  office  or  public  trust 

shall  ever  be  required.     No  religious   ....       6     —       3     37^ 

Testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court.  No  person  shall  be 
convicted  of  treason  except  on  the 3       3       I     368 

Three-fourths  of  the  legislatures  of  the  States,  or  con- 
ventions in  three-fourths  of  the  States,  as  Con- 
gress shall  prescribe,  may  ratify  amendments  to 
the  Constitution 5     —    —     37° 

Tie.     The  Vice-President  shall  have  no  vote  unless  the 

.Senate  be  equally  divided i       3       4     349 

Times,  places,  and  ma>iner  of  holding  elections  for 
Senators  and  Representatives  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof  141  349 
But  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  places  of 
choosing  Senators       i       4       ^     349 

Title  of  nobility.     The  United  States  shall  not  grant 

any i 

No  State  shall  grant  any i 

Title  of  any  kind,  from  any  king,  prince,  or  foreign 
State,  without  the  consent  of  Congress.  No 
person  holding  any  office  under  the  United 
States  shall  accept  of  any i 

Tonnage  without  the  consent  of  Congress.     No  State 

shall  lay  any  duty  of i 

Tranqnillity,  provide  for  the  common  defense,  etc.    To 

insure  domestic.     [Preamble]       — 

Treason  shall  consist  only  in  levying  war  against  the 
United  States,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort 3       3       i     368 


9 
10 

8 

I 

358 

9 

8 

358 

10 

3 

361 

— 

— 

347 

OF   THE   UNITED    STATES  441 

Art.   Sec.   CI.   Page 

Treason.     No  person  shall,  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court,  be  convicted  of  ...     .       3       3       '     3'^^ 
Congress  shall  have  power  to  declare  the  punish- 
ment of 3       3       2     368 

Shall  not  work  corruption  of  blood.     Attainder  of       3       3       2     368 
Shall  not  work  forfeiture,  except  during  the  life 
of  the  person  attainted.     Attainder  of  ...     .       3       3       2     368 

Treason,  bribery,  or  other  high  crimes  and  misde- 
meanors. The  President,  Vice-President,  and 
all  civil  officers  shall  be  removed  from  office  on 
impeachment  for  and  conviction  of        ....       2       4     —     365 

Treason,  felony,  and  breach  of  the  peace.  Senators  and 
Representatives  shall  be  privileged  from  arrest 
while  attending  or  while  going  to  or  returning 
from  the  sessions  of  Congress,  except  m  cases 
of I       6       I     350 

Treasury,  but  in  consequence  of  appropriations  made 

by  law.     No  money  shall  be  drawn  from  the     .197     358 

Treaties.     The  President  shall   have  power,  with  the 
advice  and  consent  of  the  Senate,  provided  two- 
thirds  of  the  Senators  present  concur,  to  make       222     364 
The  judicial  power  shall  extend  to  all  cases  arising 

under  the  Constitution,  laws,  and 3       2       i     365 

They  shall  be  the  supreme  law  of  the  land, 
and  the  judges  in  every  State  shall  be  bound 
thereby 6    —       2     371 

Treaty,   alliance,    or   confederation.     No    State   shall 

enter  into  any I     10       I     35S 

Trial,  judgment,  and  punishment  according  to  law. 
Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  to  removal  from  and  dis- 
qualification for  office  ;  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indict- 
ment       I       3 

Trial  by  jury.  All  crimes,  except  in  cases  of  impeach- 
ment, shall  be  tried  by  jury 3       2 

Such  trial  shall  be  held  in  the  State  within  which 

the  crime  shall  have  been  committed    ....       3       2 
But  when  not  committed  within  a  State,  the  trial 
shall  be  at  such  place  as  Congress  may  by  law 

have  directed  ....         3       ^ 

In  all  criminal  prosecutions  the  accused  shall  have 

a  speedy  and  public.     [Amendments]  ....       6    — 
Suits  at  common  law,  when  the  amount  exceeds 

twenty  dollars,  shall  be  by.     [Amendments]      .       7     — 

Tribunals  inferior  to  the  Supreme  Court.     Congress 

shall  have  power  to  constitute i       8 

Troops  or  ships  of  war  in  time   of  peace  without  the 

consent  of  Congress.     No  State  shall  keep  .     .       I     10 

Trust  and  Profit  vlwAqx  \\i^  United  States  shall  be  an 
elector  for  President  and  Vice-President.  No 
Senator,  Representative,  or  person  holding  any 
office  of 2       I       2     361 


7 

349 

3 

367 

3 

367 

3 

367 

- 

376 

- 

zn 

9 

3SS 

3 

361 

442         INDEX    TO    THE    CONSTITUTION 

Art.    Sec.   CI.    Page 

Two-thirds  of  the  members  present.  No  person  shall 
be  convicted  on  impeachment  without  the  con- 
currence of •       ^       3       "     349 

Two-thirds,  may  expel  a  member.     Each   House,  with 

the  concurrence  of i        5       ^     35° 

Tivo-thirds.  A  bill  returned  by  the  President  with  his 
objections  may  be  repassed  by  each  House  by 
a  vote  of I       7       2     351 

Two-thirds  of  the  Senators  present  concur.  The 
President  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make 
treaties,  provided 2       2       2     364 

Two-thirds  of  the  legislatures  of  the  several  States. 
Congress  shall  call  a  convention  for  proposing 
amendments  to  the  Constitution  on  the  applica- 
tion of S     —    —     370 

Two-thirds  of  both  Houses  shall  deem  it  necessary. 
Congress  shall  propose  amendments  to  the  Con- 
stitution whenever 5  37° 

Two-thirds  of  the  States.  When  the  choice  of  a  Presi- 
dent shall  devolve  on  the  House  of  Representa- 
tives, a  quorum  shall  consist  of  a  member  or 
members  from.     [Amendments]       12     —    —     37° 

Two-thirds  of  the  whole  number  of  Senators.  A  quo- 
rum of  the  Senate,  when  choosing  a  Vice-Presi- 
dent, shall  consist  of.      [Amendments]      ...     12     —     —     378 

T'wo-tkirds,  may  remove  the  disabilities  imposed  by  the 
third  section  of  the  fourteenth  amendment. 
Congress  by  a  vote  of.     [Amendments]    ...     14       3     —     383 

Two  years.     Appropriations  for  raising  and  supporting 

armies  shall  not  be  for  a  longer  term  than     .     .       i       8     12     355 

U. 

Union.     To  establish  a  more  perfect.     [Preamble]      .     —    —    —    347 
The  President  shall,  from  time  to  time,  give  to 

Congress  information  of  the  state  of  the  •  •  •  ~  3  —  3^4 
New  States  may  be  admitted  by  Congress  into  this  4  3  I  369 
But  no  new  State  shall  be  formed  or  erected  within 

the  jurisdiction  of  another  State 4       3       i     369 

Unreasonable  searches  and  seizures.  The  people  shall 
be  secured  in  their  persons,  houses,  papers,  and 

effects  against.     [Amendments] 4     —     —     375 

And  no  warrants  shall  be  issued  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation, 
and  particularly  describing  the  place  to  be 
searched  and  the  persons  or  things  to  be  seized. 

[Amendments] 4    —    —     375 

Unusual  punishments  inflicted.  Excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed,  nor 

cruel  and.     [.Amendments] 8     —     —     377 

Use   without    just    compensation.      Private   property 

shall  not  be  taken  for  public.     [Amendments]         5     —    —     37S 


OF    THE    UNITED    STATES 


443 


Useful  arts,  by  securing  for  limited  times  to  authors 
and  inventors  the  exclusive  right  to  their  writ- 
ings and  inventions.  Congress  shall  have  power 
to  promote  the  progress  of  science  and  the  .     . 


Art.    Sec.   CI.    Page 


I      8      8    354 


Vacancies  happening  in  the  representation  of  a  State, 
The  executive  thereof  shall  issue  writs  of  elec- 
tion to  fill I       2       4     348 

Vacancies  happening  in  the  Senate  in  the  recess  of  the 

legislature  of  a  State.     Hove  filed i       3       ~     349 

Vacancies  that  happened  during  the  recess  of  the  Sen- 
ate, by  granting  commissions  which  shall  expire 
at  the  end  of  the  next  session.     The  President 

shall  have  power  to  fill 2       2       3     364 

Validity  of  the  public  debt  incurred  in  suppressing 
insurrection  against  the  United  States,  includ- 
ing debt  for  pensions  and  bounties,  shall  not 

be  questioned.     [Amendments] 14      4     —     383 

Vessels  bound  to  or  from  the  ports  of  one  State  shall 
not  be  obliged  to  enter,  clear,  or  pay  duties  in 

another  State 

Veto  of  a  bill  by  the  President.     Proceedings  of  the 

two  Houses  upon  the 

Vice-President  of  the  United  States  shall  be  President 

of  the  Senate 

He   shall    have    no  vote  unless  the    Senate   be 

equally  divided •     .     .     . 

The    Senate  shall  elect  a  President  pro  tempore 

in  the  absence  of  the 

He  shall  be  chosen  for  the  term  of  four  years     . 
The  number  and  the  manner  of  appointing  elect- 
ors for  President  and 2       I       2     361 

In  case  of  the  removal,  death,  resignation,  or  ina- 
bility of  the  President,  the  powers  and  duties 

of    his  office  shall  devolve  on  the 2       i       5     363 

Congress  may  provide  by  law  for  the  case  of  the 
removal,  death,  resignation,  or  inability  both  of 

the  President  and 2       i       5     3^3 

On  impeachment  for  and  conviction  of  treason, 
bribery,  and  other  high  crimes  and  misdemean- 
nors  shall  be  removed  from  office.  The  ...  2  4  —  365 
Vice-President.  The  manner  of  choosing  the.  The 
electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  President  and  Vice-Pres- 
ident, one  of  whom,  at  least,  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves. 

[Amendments] 12     —    —     378 

The  electors  shall  name,  in  distinct  ballots,  the 
person  voted  for  as  Vice-President.      [Amend- 

ment.s] 12     —     —     378 

They  shall  make  distinct  lists  of  the  persons  voted 
for  as  Vice-President,  which  lists  they  shall  sign 


I   9 

6 

357 

I   7 

2 

351 

I   3 

4 

349 

I   3 

4 

349 

1  3 

2  I 

s 
I 

349 
361 

444        INDEX    TO    THE    CONSTITUTION 

Art.    Sec.    CI.    Page 
and  certify,  and  send  sealed  to  the  seat  of  gov- 
ernment, directed  to  the  President  of  the  Sen- 
ate.    [Amendments] 12     —    —     378 

Vice-Presidetit.  The  manttcr  of  choosing  the.  The 
President  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates,  and  the  votes  shall  then 

be  counted.     [Amendments] 12     —    —     378 

The  person  having  the  greatest  number  of  votes 
shall  be  Vice-President,  if  such  number  be  a 
majority    of   the    whole    number   of    electors. 

[Amendments] 12     —     —     378 

If  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall 
choose  the  Vice-President.  [Amendments]  .  12  —  —  378 
A  quorum  for  this  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators  ;  and 
a  majority  of  the  whole  number  shall  be  nec- 
essary to  a  choice.  [Amendments]  ....  12  —  —  378 
But  if  the  House  shall  make  no  choice  of  a  Pres- 
ident before  the  4th  of  March  next  following, 
then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitu- 
tional disability  of  the  President.  [Amend- 
ments]    12     —    —     378 

No  person  constitutionally  ineligible  as  President 

shall  be  eligible  as.      [Amendments]     ....     12     —    —     378 
Violence.     The  United  States  shall  guarantee  to  every 
State  a  republican   form    of  government,  and 
shall  protect  each   State  against  invasion  and 

domestic 4       4    —     370 

Virginia  entitled  to  ten  Representatives  in  the  First 

Congress i       2       3     348 

Vote.     Each  Senator  shall  have  one i       3       i     34S 

The  Vice-President  unless  the  Senate  be  equally 

divided,  shall  have  no i       3      4     3^0 

Vote  requiring  the  concurrence  of  the  two  houses 
(except  upon  a  question  of  adjournment)  shall 
be  presented  to  the  President.      Every  order, 

resolution,  or i       7       3     "551 

Vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color, 
or  previous  condition  of  servitude.  The  right 
of  citizens  of  the  United  States  to.  [Amend- 
ments]      15       I     —     384 

Vote  of  two-thirds.     Each  House  may  expel  a  member 

by  a I       5      2     350 

A  bill  vetoed  by  the  President  may  be  repassed  in 

each  House  by  a i       7       2     351 

No  person  shall  be  convicted  on  an  impeachment 

except  by  a i       3      6    349 

Whenever  both  Houses  shall  deem  it  necessary, 
Congress  may  propose  amendments  to  the  Con- 
stitution by  a 5     —    —     370 


OF   THE   UNITED    STATES  445 

Art.    Sec.    CI.    Page 
Voteofhuo-thirds.     The  President  may  make  treaties, 

with  the  advice  and  consent  of  the  Senate,  by  a       2       2       2     364 
Disabilities  incurred  by  participation  in  insurrec- 
tion or  rebellion  may  be  relieved  by  Congress 
by  a.     [Amendments] 14      3    —    3^3 

W. 

War^  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water. 
Congress  shall  have  power  to  declare  ....  1  8  ii  355 
For  governing  the  land  and  naval  forces.  Con- 
gress shall  have  power  to  make  rules  and  arti- 
cles of I       8     14     355 

No  State  shall,  without  the  consent  of  Congress, 
unless  actually  invaded,  or  in  such  imminent 
danger,  as  will  not  admit  of  delay,  engage  in  .  i  10  3  361 
War  against  the  United  States,  adhering  to  their 
enemies,  and  giving  them  aid  and  comfort. 
Treason  shall  consist  only  in  levying  •■•33^  368 
Warrants  shall  issue  but  upon  probable  cause,  on 
oath  or  affirmation,  describing  the  place  to  be 
searched,    and    the    persons    or    things   to   be 

seized.     No.     [Amendments] 4     —    —     375 

Weights  and  measures.    Congress  shall  fix  the  standard 

of •     •     •     •       I      S       5     354 

Welfare,  and  to  secure  the  blessings  of  liberty,  etc. 

To  promote  the  general.     [Preamble]  ....     —     —    —     347 
Welfare.     Congress  shall  have  power  to  provide  for 

the  common  defense  and  general      .....       i       8       i     35' 
Witness  against  himself.     No  person  shall,  in  a  crim- 
inal case,  be  compelled  to  be  a.  [Amendments]       5     —     —     375 
Witnesses  against  him.     In  all  criminal   prosecutions 
the    accused    shall    be    confronted    with    the. 

[Amendments] •     •       6    —    —     376 

Witnesses  in  his  favor.     In  all  criminal  prosecutions 
the  accused  shall  have  compulsory  process  for 
obtaining.     [Amendments]       .......      6    —    —     376 

Witnesses  to  the  same  overt  act,  or  on  confession  in 

open  court.     No  person  shall  be  convicted  of 

treason  unless  on  the  testimony  of  two      •••33^     3^8 

Writ  of  habeas  corpus  shall  not  be  suspended,  unless 

in    case    of    rebellion    or   invasion   the   public 

safety  may  require  it I       9       ^     357 

Writs  of  election  to  fill  vacancies  in  the  representation 
of  any  State.     The  executive  of  the  State  shall 

issue I       2      4     348 

Written  opinion  of  the  principal  officer  in  each  of  the 
Executive  Departments  on  any  subject  relating 
to  the  duties  of  his  office.  The  President  may 
require  the 2       2       I     363 


446        INDEX   TO    THE    CONSTITUTION 


Y. 

Art.   Sec.   CI.   Page 
Yeas  and  nays  of  the  members  of  either  House  shall, 
at  the  desire  of  one-fifth  of  those  present,  be 

entered  on  the  journals I       5       3     350 

The  votes  of  both  Houses  upon  the  reconsidera- 
tion of  a  bill  returned  by  the  President  with  his 
objections  shall  be  determined  by i       7       2     351 


INDEX 


Adams,  John,  on  association  of 
1774,  9;  on  Declaration  of  In- 
dependence, 11;  on  the  Federal 
Convention,  17,  70;  Vice-Presi- 
dent, 90;  announces  Eleventh 
Amendment,  105;  President,  108, 
109;  and  the  Monroe  Doctrine, 
154;  appoints  John  Marshall 
chief-justice,  236. 

Adams,  John  Quincy,  114,  118; 
supports  Jefferson  in  the  pur- 
chase of  Louisiana,  134;  and  the 
Pan-American  Congress,  158. 

Adams,  Samuel,  84,  85. 

African  slave  trade.  The,  opposed 
in  the  Federal  Convention,  27; 
treaty  between  th«  United  States 
and  Great  Britain,  210,  211. 

Alabama,  201,  233,  254,  255,  258, 
268,  270,  283,  294. 

Alexandria,  219. 

Alien  and  Sedition  Acts,  126-12S. 

Amendments,  of  the  Constitution, 
first  twelve,  92-120;  proposed  by 
Jefferson  to  ratify  Louisiana  pur- 
chase, 133;  proposed  thirteenth 
amendment  (1861)  205-208; 
recommended  by  Lincoln  for 
compensatory  emancipation,  213; 
of  state  constitutions  (1S00-1860), 
225,226;  the  thirteenth,  250-25S; 
the  fourteenth,  260-271  ;  the  fif- 
teenth, 271-275;  character  of  the 
thirteenth,  fourteenth,  and  fif- 
teenth, 276,  277,  280,  2S3,  2S4,  285, 
286,  2S7,  291,  308-311,  343.  345- 

American  Anti-Slavery  Society,  172. 

Ames,  Fisher,  96,  98. 

Annapolis  convention.  The,  16. 

Anti-Federalists,  their  estimate  of 
"The  Federalist,"  35;  objection 
to  a  standing  army,  44,  45  ;  objec- 


tion to  the  power  of  Congress  to 
tax,  46  ;  objection  to  powers  of  the 
national  government,  48  ;  to  the 
powers  of  the  House  of  Repre- 
sentatives, 53;  objection  to  the 
status  of  treaties,  58  ,  objection 
to  the  Senate  as  court  of  im- 
peachment, 59 ;  approval  of  pro- 
vision for  presidential  electors, 
60 ;  objection  to  tlie  powers  of 
the  President,  61  ;  objection  to 
the  judiciary,  63-67  :  origin  of  the 
name,  83;  oppose  ratification  of 
the  Constitution,  83-91. 

Arizona,  203. 

Arkansas,  202 ;  military  governor 
in,  214;  abolishes  slavery,  218, 
225,  270,  283.  292. 

Articles  of  Confederation,  12,  13, 
14,  15,  16,  17. 

Ashley,  James  M  ,  250,  251. 

Association  of  1774,  9. 

Atchison,  Senator,  190. 

B 

Baldwin,  Abraham,  96,  117,  118. 

Baltimore  Convention  (i86o),  197; 
283. 

Bank,  a  national  (1791),  121-123. 

Benson,  Egbert,  98. 

Benton,  Thomas  H.  144-146. 

Bills  of  Rights,  70-73;  proposed  by 
ratifying  conventions  (1787,  17S8) 
84-92  ;  first  ten  amendments  as, 
92-100 ;  see  under  "  Constitu- 
tions, The  State." 

Bill  of  rights,  the  English,  16S9,  8, 

Bills  of  credit,  1775.  1 1. 

Bingham,  John  A.  261,  273. 

Blair,  Francis  P.  271. 

Border  States,  The,  during  the  civil 
war,  2IO-222;  reject  the  fifteenth 
amendment,  293. 


448 


INDEX 


Boutwell,  George  S.  273. 

Bradley,  Joseph  P.  Justice,  315. 

Breckenridge,  John,  70,  128. 

Breckeiiridge,  John  C.  197. 

Bryce's  American  Commonwealth, 
62  (note). 

Buchanan,  James,  President,  on  the 
Kansas  constitutions,  194;  atti- 
tude of  towards  secession,  204, 
205. 

Burt,  Armistead,  proposes  amend- 
ment to  Oregon  Bill,  177. 

Burr,  Aaron,  109,  lio,  HI,  115,  134. 

Butler,  General  Benjamin  F.  273. 

Butler,  Pierce,  98,  117,  118. 


Calhoun,  John  C,  deferids  nullifica- 
tion, 165,  166 ;  speech  on  Clay's 
resolutions,  184,  185. 

California,  questions  involved  in  the 
acquisition  of,  177-179,  183-189; 
225,  257,  265,  270,  27s,  286. 

Campbell,  Brookins,  116. 

Canning,  George,  152,  153. 

Carrol,  Charles,  98. 

Caswell,  Richard,  70. 

Census,  27. 

Chandler,  Zachariah,  on  the  Corwin 
Amendment,  207. 

Charleston,  269. 

Chase,  Salmon  P.,  on  Kansas- 
Nebraska  Bill,  191 ;  on  the  con- 
stitutionality of  slavery  restric- 
tion, 192. 

Chicago  Convention  (i860),  197; 
(1868)  271. 

Civil  War,  causes  of,  197-201 ;  sup- 
pression of,  209-224. 

Clay,  Henry,  118;  and  the  Missouri 
Compromise,  140-149;  on  the 
Monroe  Doctrine,  156;  and  Nulli- 
fication, 168;  his  censure  of  Jack- 
son, 170, 171 ;  his  eight  resolutions, 
183-189. 

Clinton.  Ue  Witt,  112. 

Clinton,  George,  88,  109. 

Clopton,  David,  112. 

Clymer,  George,  96. 

Cobb,  Howell,  204,  205. 

Cobb,  Thomas  W.,  146,  205. 

Colfax,  Schuyler,  218,  252,  271,  274. 


Collins,  John,  99. 

Common  Sense,  Paine's,  11. 

Commonwealths,  see  States. 

Compact,"  The  Social,  70. 

Compromise  of  1850,  182-189. 

Confederacies,  several  suggested 
for  America,  37. 

Confederate  states  of  America, 
201-204;  did  not  include  the 
fjorder  States,  2io ;  relation  of 
Tennessee  to,  222  ;  legal  aspect 
of  de  facto  local  governments 
under,  305. 

Confederation,  1776,  12. 

Confiscation  Bill,  The,  209,  210, 
211. 

Congress,  of  1765,  6,  7  ;  of  1774, 
7-1 1 ;  takes  up  question  of  inde- 
pendence, 12;  confederation,  13; 
public  lands,  14;  Tariff  Act 
(1786),  proposed,  15;  suggestions 
by,  ignored.  16,  17  ;  organized  by 
the  Federal  Convention,  20,  21, 
22-24,  25,  26-2S,  29,  30,  32; 
powers,  organization,  and  char- 
acter of,  examined  in  "  The  Fed- 
eralist," 40,  41,  45,  46-48,  51,  52, 
53-56,  57,  59;  submits  the  Con- 
stitution to  the  states,  82,  83; 
discusses  first  ten  amendments, 
92-9S ;  discusses  the  eleventh 
amendment,  105;  discusses  the 
twelfth  amendment,  109,  11 2-1 17  ; 
creates  the  United  States  Bank, 
122  ;  and  the  Jay  Treaty,  124, 
125  ;  discusses  the  Missouri  com- 
promise, 140-150,  and  the  tariffs 
of  1824,  1828,  1833,  157-168; 
power  of,  over  slavery,  Mexico, 
California,  Oregon,  Texas  (com- 
promise of  1850),  175-189;  passes 
Kansas-Nebraska  Act,  190-193; 
passes  the  thirteenth  amendment 
(1861),  205-20S ;  passes  the  Con- 
fiscation Act,  209,  210;  abolishes 
slavery  in  the  territories  and  the 
District  of  Columbia,  2ro,  282; 
refuses  recognition  of  the  Pier- 
point  government  but  accepts  its 
ratification  of  the  thirteenth 
amendment,  219,  emancipates 
escaped  slaves,  282 ;  discusses 
and  adopts  the  thirteenth  amend- 
ment (1865),  250,  252,  283  ;  passes 


INDEX 


449 


the  Civil  Rights  Act,  258,  284  ; 
restores  Tennessee  to  Federal  re- 
lations, 259  ;  confers  the  suffrage 
on  negroes  in  the  District  of 
Columbia,  259,  284 ;  establishes 
negro  suffrage  in  the  territories, 
259,  260,  2S4,  285  ;  debates  and 
adopts  the  fourteenth  amend- 
ment, 260-263  ;  prohibits  peon- 
age, 266,  267,  285 ;  passes  the 
reconstruction  acts,  267,  285  ;  re- 
admits Arkansas,  Florida,  North 
Carolina,  South  Carolina,  and 
Louisiana  to  the  Union,  270; 
passes  the  fifteenth  amendment, 
272-275,  2S6 ;  criticism  of  the  re- 
construction policy  of  Congress, 
287-290 ;  power  of,  over  territo- 
ries, 323-326. 
Constitution,  formation  of,  18-34; 
ratification  of,  by  Congress,  82, 
83;  by  Pennsylvania,  83,  84;  by 
Delaware,  New  Jersey,  Georgia 
and  Connecticut,  84;  by  Mas- 
sachusetts, 84,  85 ;  by  Maryland, 
85;  by  South  Carolina,  85,  86; 
by  New  Hampshire,  86 ;  bv  Vir- 
ginia, 87,  88;  by  New  York,  88, 
89  ;  inauguration  of,  90  ;  ratified 
by  North  Carolina,  90;  the  vote 
on,  90,  91  ;  demand  for  amend- 
ments, 91  ;  Madison  in  Congress 
submits  amendments  to,  91-94; 
discussion  of  the  amendments  in 
Congress,  94-98 ;  the  amend- 
ments ratified  by  the  states,  99, 
100;  Rhode  Island  ratifies  the, 
99,  100;  Vermont  ratifies  the, 
100;  character  of  the  framers  of, 
100;  article  on  the  judiciary,  100, 
loi  ;  on  suits  against  a  state,  loi- 
105;  on  sovereignty,  101-103; 
amended  (179S)  article  XI,  105, 
106;  amended  (k^04)  article  XII, 
106-119;  character  of  first  twelve 
amendments,  117,  119;  Jefferson 
suggests  amendment  of  (1803), 
103-133;  does  not  authorize  in- 
ternal improvements  (Monroe's 
interpretation)  138,  139;  appealed 
to,  at  the  time  of  the  Missouri 
Compromise,  141-149;  relation 
of,  to  Tariff  acts  (nullification) 
156-169;  relation  of,  to  the  Bank 


Act  (1832),  169-171  ;  relation  of, 
to  acquisition  of  territory  (Louis- 
iana, 1803),  130-135;  Mexico, 
California  (1844-50),  174-189; 
relation  of,  to  slavery  extension 
(Texas,  Oregon,  California),  174- 
189;  Kansas-Nebraska,  190-194; 
(Dred  Scott  case),  194-197  ;  rela- 
tion of,  to  secession  (i860),  197- 
210;  relation  of,  to  civil  war,  209- 
214;  relation  of,  to  reconstruc- 
tion, 214-224;  interpretation  of 
(1794-1860),  236-249;  thirteenth 
amendment  ( 1865),  250-252  ;  four- 
teenth amendment,  260-271  ;  fif- 
teenth amendment,  271-277;  a 
composite  organic  law,  278,  279; 
amended  practically  by  adminis- 
tration, 279;  character  of  last 
three  amendments,  280,  281,  285, 
286,  287  ;  interpretation  of  prin- 
ciples of,  by  the  courts  (1860- 
igor),  303-326;  remarks  on  the 
forces  in  the  evolution  in  govern- 
ment under  the,  327-346. 
Constitutions,  The  State,  record  the 
civil  evolution,  3,  4;  at  the  basis 
of  the  national  Constitution,  31- 
34;  the  first  group  (1776-1S00), 
69-81  ;  principal  framers  of  the 
first,  69,  70  ;  reflect  current  politi- 
cal theories,  70;  their  presenta- 
tion of  government,  70;  the  bill 
of  rights,  early  type,  70-72;  how 
made,  71  ;  their  interpretation  of 
federal  government,  72-73  ;  their 
definition  of  the  scope  and  powers 
of  government,  73,74;  precedence 
and  prototypes  of,  73,  74;  basis 
of  representation  in,  74,  75;  qual- 
ifications for  office  holding,  75; 
supremacy  of  the  legislative,  75, 
76;  dependence  of  the  executive, 
76,  77;  the  judiciary,  76-79; 
adaptation  of  to  popular  wants, 
79,  80 ;  characteristics  and  types 
of.  So,  81  ;  the  second  group 
(1800-1860),  225-235;  bills  ot 
rights  (1800-1860),  226;  preva- 
lence of  the  bicameral  system, 
226;  provisions  on  banking,  226; 
on  land  grants,  226;  on  special 
legislation,  227  ;  on  internal  im- 
provements,   227  ;  on   local   gov- 


450 


INDEX 


ernment,  227  ;  on  districting,  227  ; 
the  gerrymander,  228 ;  on  appor- 
tionment, 227,  228;  on  quali- 
fications for  voting,  228 ;  the 
Wisconsin  (1848),  228;  on  legis- 
lative powers,  227,  229;  on  lot- 
teries, 229;  on  free  persons  of 
color,  229;  on  powers  of  the 
executive,  230,  231  ;  eminent 
framers  of,  231  ;  on  charitable  in- 
stitutions and  reformatories,  231  ; 
on  the  judiciary,  232,  233;  on 
State  sovereignty,  234;  exponen- 
tial of  industrial  and  social  con- 
ditions, 225,  226,  234;  the  third 
group  (1860-1900):  reconstruc- 
tion, 291-293;  annulment  of  the 
word  "  white,"  291  ;  bills  of  rights 
in(i865-i890),  292-296 ;  Michigan 
(1867),  292;  Mississippi  (1890), 
293,  294,  295;  Louisiana  (1S98), 
294;  North  Carolina  (1896),  294; 
Virginia  (1902),  294;  Wyoming 
(1890),  295;  legislative  power, 
296-29S  ;  the  Executive,  298,  299 ; 
the  judiciary,  300;  administra- 
tive character  of,  298,  301  ;  gen- 
eral character  of,  political,  social, 
and  industrial,  3-7-339-343-346; 
chronological  list  of,  301,  302 
(note). 

Connecticut,  14 ;  becomes  a  state, 
69;  ratifying  convention,  84,  90. 

Convention,  Annapolis,  16;  federal, 
the,  17-34. 

Conventions,  Pennsylvania  ratify- 
ing, 84 ;  Delaware,  New  Jersey, 
Georgia,  Connecticut,  84  ;  Massa- 
chusetts, 84,  85;  Maryland,  85; 
South  Carolina,  85,  86;  New 
Hampshire,  86,  87  ;  North  Caro- 
lina, 87,  90;  Virginia,  87,  88; 
New  York,  88,89;  Khode  Island, 
99,  100;  Vermont,  100. 

Corvvin,  Thomas,  206,  207,  208. 

Crawford,  William  11.  118 

Crittenden,  John  J.  205,  206. 

Crittenden  Resolutions,  The,  205, 
206,  207,  208. 

Cumberland  Road  Bill,  Monroe's 
veto  of,  138. 

Curtis,  Benjamin  R.,  opinion  in  the 
Dred  Scott  case,  196. 


D 


Dartmouth  College  case.  The,  242. 

Davis,  Jefferson,  Secretary  of  War, 
198 ;  President  of  the  Southern 
Confederacy,  202. 

Davis,  John,  183. 

Dawson,  John,  112,  113. 

Dayton,  Jonathan,  114,  117. 

Declaration  of  Independence,  11, 
12,  118. 

Declaration  of  rights  (1765),  8,  9. 

Delaware,  13,  76,  So,  84,  90,  210, 
211,  255,  257,  266,  270,  275;  diffi- 
culty of  changing  constitution  of, 
279  (and  note),  282,  285,  286. 

Democratic  party,  The,  264,  271. 

Democratic-Republicans,  on  Jay's 
Treaty,  125;  on  the  Alien  and 
Sedition  Acts,  126-129;  princi- 
ples of,  127,  128. 

De  Tocqueville's  "Democracy  in 
America,"  62  (note). 

Development  of  America,  The 
civil,  3. 

Dickinson,  John,  12,  13. 

District  of  Columbia,  The,  slavery 
and  the  slave  trade  in,  178,  183, 
184. 

Douglas,  Stephen  A.,  reports  Ore- 
gon Bill,  177,  178;  on  Kansas- 
Nebraska  Bill,  190-192 ;  on  the 
Dred  Scott  case,  196 ;  nominated 
for  President,  197;  on  the  Con- 
stitutional amendment  of,  1861, 
207,  257. 

Drake,  Charles  F.  217. 

Dred  Scott  case,  decision  in, 
anticipated  (1820),  149,  194-197; 
overruled  by  Congress,  211; 
overruled  by  the  Emancipation 
Proclamation,  214,  237,  238,  246, 


East  Florida,  154. 
Eaton,  John  H.  147. 
Edmunds,  George  F.  273. 
Eleventh  Amendment,  100-106 ;  a 

victory  for  the  democratic  party, 

127. 
Ellsworth,  Oliver,  118. 
Emancipation    Proclamation,   The, 


INDEX 


451 


Fremont's,  209;   Lincoln's,  212- 

214;  policy  of,  217,  218. 
Embargo  Act,  The,  135-137- 
"  Endless  Chain  "  Act,  317  (note). 
Equality  of  Men,  70. 
Executive,  The  state,  76,  77. 


"  Federalist,  The,"  authorship  of,  36 
(note) ;  first  appearance  and  pur- 
pose, 36;  first  exposition  of  the 
Constitution,  36;  general  argu- 
ment of,  37-39,  42 ;  on  the 
mechanics  of  government,  40,  41 ; 
on  distinction  between  confedera- 
tion and  national  government,  43 ; 
on  the  defects  of  the  Confedera- 
tion, 43,  44;  grand  political  de- 
duction from,  44 ;  on  a  standing 
army,  44,  45;  on  trusting  the 
people,  45  ;  on  administration  of 
government,  44,  45 ;  on  public 
officials,  46;  on  taxation,  46-4S  ; 
on  usurpation  of  power,  48 ;  on 
checks  and  balances,  49 ;  on  the 
national  and  the  federal  qualities 
of  the  new  government,  49,  50 ; 
on  the  coercion  of  a  state,  51  ;  on 
secession,  51-54;  on  representa- 
tion in  Congress,  52 ;  on  usurpa- 
tion of  powers  by  the  House,  53; 
on  the  powers  of  the  House,  53, 
54;  on  the  suffrage,  54;  on  residu- 
ary sovereignty,  55 ;  on  the  Sen- 
ate, 55-57;  on  the  objects  of 
government,  57 ;  on  the  treaty- 
making  power,  57,  58 ;  on  the 
character  of  the  Senate,  58,  59; 
on  the  powers  of  Congress,  60, 
61  ;  its  silence  on  political  parties, 
61,  62;  on  the  judiciary,  62-66; 
on  the  omission  of  a  bill  of  rights, 
66,  67 ;  summary  of  its  teach- 
ings, 67,  68  ;  principles  of,  applied 
in    Madison's   Amendments,    94, 

95- 
Federalist  Party,  The,  favor  ratifi- 
cation of  the  Constitution, 82-92  ; 
oppose  first  ten  amendments,  95  ; 
in  Rhode  Island,  99 ;  in  the  elec- 
tion of  1796,  108,  109;  in  the 
election  of  1800,  no,  ill ;  oppose 


the  purchase  of  Louisiana,  123; 
broad  constructionists,  123,  124; 
on  Jay's  Treaty,  124,  125;  on 
the  Alien  and  Sedition  Acts,  126- 
12S;  principles  of,  127;  atti- 
tude towards  the  Louisiana  Pur- 
chase, 131-135;  in  New  England, 
(1807-1S14)  i35-'37- 

Fessenden,  William  Pitt,  262. 

Field,  Justice  Stephen  J.,  dissent- 
ing opinion  of,  in  legal-tender 
cases,  117,  315. 

Fifteenth  Amendment,  The,  in 
Congress,  272-274;  ratification 
of,  274-276,  2S6 ;  judicial  inter- 
pretation of,  286,  311,  312. 

Fitzsimons,  Thomas,  118. 

Florida,  254,  257,  258,  269,  270, 
282,  283. 

Floyd,  John  B.  204,  205. 

Foot  resolution.  The,  159. 

Foraker  Act,  The,  324,  325. 

Foster,  Abiel,  109. 

Fourteenth  Amendment,  The,  his- 
tory of,  260-263 ;  ratification  of, 
263-271,  285,  286;  judicial  inter- 
pretation of,  309,  310. 

Frankfort  (Ky.)  convention,  180, 
i8r,  182. 

Franklin,  Benjamin,  5,  n,  12,  13, 
26,  31,  32,  69,  338. 

Franklin,  State  of,  38. 

Free  negroes,  145-148. 

Fremont,  John  C.,  General,  issues 
Emancipation  Proclamation,  209; 
281. 

Fugitive  Slave  Act,  178,  183,  184; 
constitutionality  of,  245. 

Fuller,  Melville  W.,  Chief-Justice, 
318. 


Galloway,  Joseph,  8. 

Gamble,' Hamilton  R.  217. 

Garfield,  James  A.  261. 

Garrison,  William  L.  172. 

Georgia,  8, 10,  14;  ratifying  conven- 
tion, 84;  90;  joins  the  Southern 
Confederacy,  201  ;  233,  254,  256, 
257,  258.  Constitutional  con- 
vention (1865),  264;  ratifies  thir- 
teenth amendment,  257  ;  abolishes 
slavery,  257  ;   whites  and  negroes 


452 


INDEX 


in,  258;  electoral  vote  of  (1868), 

271;  282,283. 
Gerry,    Elbridge,    distrust    of    the 

people,  42  ;  96,  97  ;    126. 
Gerrymander,  228. 
Gilman,  Nicliolas,  96,  118. 
Grant,  U.  S.  President,  271,  276. 
Grayson,  William,  87. 


H 


Habeas  corpus,  suspension  of  the 
writ  of,  247. 

Halin,  Michael,  219. 

Hamilton,  Alexander,  on  the  Con- 
federation, 14,  15,  16;  at  Annap- 
olis convention,  16;  in  Federal 
Convention,  24,  31,  32;  joint 
author  of  "The  Federalist,"  35; 
sketch  of  a  government,  36;  on 
the  Union,  38;  on  military  des- 
potism, 43;  on  state  encroach- 
ment upon  national  authority, 
44  ;  on  the  source  of  civil  author- 
ity, 44;  on  restriction  of  the 
legislature,  45 ;  on  the  identity 
of  individual  and  public  interests, 
46;  on  the  power  of  taxation,  46, 
47  ;  on  duties  on  imports,  48 ;  on 
the  organization  of  the  Senate, 
55,  58 ;  on  the  appointment  of 
the  President,  59;  on  the  admin- 
istration of  government  61,  62, 
63;  on  the  judiciary,  63,  64,  65; 
on  national  sovereignty,  65 ;  on 
trial  by  jury,  66;  in  New  York 
convention,  88,  89 ;  on  the  Con- 
stitution as  a  bill  of  rights,  91  ; 
on  state  sovereignty  and  the 
suability  of  a  state,  101-104; 
intrigues  of,  no;  on  the  bank 
(1791),  122-124;  on  the  Louisiana 
Purchase,  131  ;  and  the  Monroe 
Doctrine,  154. 

Hamlin,  Hannibal,  197. 

Hancock,  John,  84,  85. 

Harrisburg  Conference,  The,  90,  92. 

Harrison,  William  H.,  death  of,  173. 

Hartford  convention,  136,  158. 

Hastings,  Seth,  1 14. 

Hawaii,  jurisdiction  over,  321,  322, 
326. 

Hayne,  Robert  Y.,  debate  on  nul- 
lification, 159-162. 


Henderson,  John  B.  250,  272,  273. 
Hendricks,  Thomas  A.  273,  313. 
Henry,  Patrick,  87. 
Hillhouse,  James,  114. 
Holman,  William  S.  252. 
Holmes,  John,  148. 
Holy  Alliance,  The,  152. 
Howard,  Jacob  M.  262,  263. 
Huger,  Benjamin,  113,  114. 
Hunter,  General  David,  282. 


I 


Illinois,  227,  229. 

Immigration,  hostility  to  foreign 
(1850),  180. 

Income  Tax  cases,  The,  318,  319. 

Independence,  American,  causes 
of,  6. 

Independent  Journal,  The,  36. 

Indiana,  227,  265. 

Industrial  conditions,  factors  in  the 
civil  evolution  ;  discovery  of  gold 
in  California,  179-18  [  ;  of  the 
North  and  the  South  compared 
(1S50),  181;  resulting  from  slavery 
if  permitted  in  Neliraska,  192, 
193;  defined  by  the  civil  war,  222- 
224. 

Inglis,  John  A.  256. 

Internal  improvements  (1813-1817), 
constitutionality  of,  137-139. 

Iowa,  225,  226,  233,  270. 

Iredell,  James,  decision  in  Chisholm 
V.  Georgia,  104,  105,  245. 

J 

Jackson  Andrew,  118;  on  public 
revenues,  158;  and  nullification, 
167,  168;  and  the  United  States 
Bank,  169;  censured  by  the  Sen- 
ate, 170,  171  ;  his  theory  of  inter- 
preting the  Constitution,  169-172. 

Jay,  John,  joint  author  of  "  The  Fed- 
eralist," 35,  36,  37,  70 ;  in  New 
York  convention,  88,  89 ;  on 
suability  of  a  state  (eleventh 
amendment),  103-105;  envoy  to 
England,  124;  on  the  Missouri 
compromise,  149. 

Jay's  Treaty,  124,  125. 

Jeff  rson  City,  21c;,  216. 

JclTcrson,    Thomas,    11,   69;     antj 


INDEX 


453 


federal  influence  of,  88  ;  on  Madi- 
son's amendments,  98 ;  electoral 
votes  for  (1796),  108,  109;  elected 
President,  no,  in  ;  on  the  Bank 
of  1791,  121-123;  his  political 
principles,  127;  inaugurates  cam- 
paign against  the  Alien  and  Sedi- 
tion Acts,  127,  128;  relation  to 
the  Virginia  and  Kentucky  Reso- 
lutions, 128-130;  on  the  Louis- 
iana Purchase,  130,  135;  on  the 
Monroe  Doctrine,  152,  154. 

Johnson,  Andrew,  Military  Gov- 
ernor of  Tennessee,  222 ;  Presi- 
dent, 252;  his  policy  of  recon- 
struction, 252,  253,  254,  256,  258, 
259,  264,  267,  269,  283,  284. 

Johnson,  Herschel  V.,  256. 

Johnson,  Reverdy,  262. 

Judiciary,  The  state,  77-79. 


K 


Kansas,  234. 

Kansas-Nebraska  Act,  190-194. 

Kentucky  Resolutions,  128-130 ; 
161,  165. 

Kentucky,  state  of,  69;  constitution 
(1792),  73,  76;  presidential 
electors  (1800),  in;  resolutions, 
128-130,  134,  161,  165;  conven- 
tion of  1849,  181,  182;  Con- 
stitution (1849),  193;  approves 
Crittendon  Resolutions,  205 ;  and 
the  Confederacy,  202,  255,  257, 
266,  270,  275,  282,  285,  286. 

King,  Rufus,  118. 


Lane,  Joseph,  197. 

Langdon,  John,  ii8. 

Lansing,  John,  28. 

Law,  administrative,  in  America,  2. 

Lee,  Richard  Henry,  n,  82. 

Legal-tender  cases,  The,  314-318. 

Legislature,  The  state,  75,  76. 

Leib,  Michael,  1x2. 

Lincoln,  President,  on  the  associa- 
tion of  1774,  9;  Cooper  Institute 
speech,  102;  on  the  Dred  Scott 
case,  196;  elected  President,  197, 


1 98 ;  approves  the  pro-slavery 
Amendment  of  1861,  208;  his 
analysis  of  secession,  208,  209; 
modifies  General  Fremont's 
Emancipation  Proclamation,  209; 
his  scheme  of  compensatory 
emancipation  refused,  211  ;  eman- 
cipates the  slaves,  212,  282;  rec- 
ommends constitutional  amend- 
ment providing  compensation  for 
slaves,  213;  his  policy  of  recon- 
struction, 21 1,  218;  his  recon- 
struction policy  in  Arkansas, 
Virginia,  and  Louisiana,  218-220; 
on  the  rights  of  labor,  223;  his 
election  the  triumph  of  the 
Liberty  party,  245;  suspends  the 
writ  of  habeas  corpus,  247,  248; 
suggests  abolition  amendment  to 
the  Baltimore  convention,  251 ; 
his  relation  to  the  thirteenth 
amendment,  251,  252;  death  of, 
252;  amnesty  proclamation  of, 
253 ;  Gettysburg  address,  303. 

Livingston,  Robert  R.,  n,  88. 

Logan,  General  John  A.  273. 

Lord  North,  policy  of,  10. 

Louisiana,  Purchase  of,  130-135; 
treaty,  139;  military  governor  in, 
214;  reconstruction  in,  219,  220; 
-~5'  233.  252,  258,  266,  270,  282, 
283,  292,  294,  295. 

Lowndes,  Rollins,  116. 

Lyon,  Matthew,  114. 


M 

Macon,  Nathaniel,  113,  117. 

Madison,  James,  in  Federal  Con- 
vention, i8,  22,  24,  27 ;  joint 
authorof  "The  Federalist,"35, 36; 
on  a  national  government,  39 ;  on 
the  Mechanics  of  government,  40, 
42;  on  government  as  a  compact, 
41  ;  87.  Democratic-Republican 
leader,  91  ;  submits  amendments 
to  Congress,  92-99 ;  proclaims 
twelfth  amendment,  117  ;  118;  and 
the  Virginia  Resolutions,  128;  on 
the  Missouri  compromise,  149; 
on  the  Monroe  Doctrine,  153, 154. 

Magna  Charta,  71,  93,  94,  118. 

Maine,  143,  144,  234. 


454 


INDEX 


Maine-Missouri  Bill,  143,  144. 

Marshall,  John,  in  Virginia  con- 
vention, 87  ;  on  suability  of  a  state 
(eleventh  amendment),  101-104; 
126;  on  the  acquisition  of  terri- 
tory, 135;  his  services  in  the 
supreme  court,  171,  236-249,  305, 
306,  316,  318,  323,  326. 

Martin,  Alexander,  118. 

Maryland,  13,  14,  16,  76,  80;  ratify- 
ing convention,  85,  86;  eman- 
cipation in,  220,  221,  222,  252, 
266,  267,  270,  275,  279,  282,  283, 
285,  286,  292. 

Mason  and  Dixon's  line,  27. 

Mason,  George,  87,  loi. 

Massachusetts,  in  Union  of  1643,  5  5 
calls  a  Congress,  1765,  6;  1768, 
7  ;  ratifying  convention,  84,  85, 
86 ;  253. 

Matthews,  Mr.  Justice,  decision  of 
in  Utah  Case,  320. 

McClurg,  Charles,  70. 

McLane,  Louis,  142. 

McLean,  John,  opinion  in  the  Dred 
Scott  case,  196;  dissenting  opin- 
ion of,  in  Prigg  v.  The  Common- 
wealth of  Pennsylvania,  245. 

Meade,  General  George  13.  269. 

Mexican  War,  The,  questions  in- 
volved in,  174,  175,  178,  179. 

Michigan,  227,  232,  233,  267,  279, 
285,  286,  292. 

Miller,  Mr.  Justice,  314. 

Minnesota,  225,265,  275. 

Mississippi,  233,  253,  254,  255,  258, 
275,  288,  293,  295. 

Missouri,  admission  of,  140-151  ; 
202;  emancipation  in,  214-217; 
229,  252,  265,  283,  292. 

Missouri  compromise,  139-151. 

Monroe  Doctrine,  The,  152-156. 

Monroe,  James,  in  Virginia  con- 
vention, 87  ;  proclaims  Missouri 
a  state,  149;  and  the  Monroe 
Doctrine,  152-156. 

Montana,  285. 

Montesquieu,  on  a  confederated 
republic,  39 ;  "  Spirit  of  Laws," 

>  39- 

Mormons,  180,  190. 

Mormon    church,    judicial  decision 

concerning,  319,  320. 
Morris,  Gouverneur,  28,  30,  31,  32, 


34,  70 ;  on  the  judiciary  article, 
100,  loi  ;  his  opinion  of  the  first 
twelve  amendments,  119. 

Mott,  Lucretia,  172. 

Municipal  and  local  government, 
227,  298,  344,  345. 

Morgan,  E.  D.  251. 


N 


Napoleon,  and  the  Louisiana  Pur- 
chase, 131. 

Nation,  significance  of  the  word, 
19,  196,  303,  304,312,313. 

Navy,  Department  of,  10. 

Nebraska,  constitution  of,  and  suf- 
frage in,  admission  of,  259,  260, 
265,  270. 

Negro,  The,  representation  of, 
under  the  Constitution,  debated, 
27,  28,  29,  30 ;  rights  of,  under 
the  Louisiana  Purchase,  135,  139; 
as  an  element  in  the  Missouri 
compromise,  139-151  ;  rights  in 
the  District  of  Columbia,  172, 
1S3,  184,  210,  259;  rights  under 
the  Mexican  acquisition  ;  174-189; 
industrial  value  of,  as  a  slave, 
180-182,  188,  189,  192,  193;  as  an 
element  in  the  Kansas-Nebraska 
question,  190-194;  status  of,under 
the  decision  in  the  Dred  Scott 
case,  194-197;  an  element  in 
secession,  198-201 ;  status  of,  by 
the  constitution  of  the  Con- 
federate states,  202,  203 ;  as 
aflfected  by  the  Confiscation  Act, 
209-212  ;  refused  emancipation  in 
Delaware,  211;  emancipated  by 
Lincoln,  212,  214;  emancipated 
in  West  Virginia,  213;  eman- 
cipated in  Missouri,  214,  217; 
emancipated  in  Arkansas,  218; 
emancipated  in  Virginia,  219; 
emancipated  in  Lousiana,  219, 
220;  emancipated  in  Maryland, 
220,221;  emancipated  in  Nevada, 
221 ;  emancipated  in  Tennessee, 
222;  emancipated  by  the  thir- 
teenth amendment,  250-252;  atti- 
tude of  Alabama,  .South  Carolina, 
North  Carolina,  Georgia,  Florida, 
Mississippi  and  Texas,  towards, 
253-258;   Congress   held   respon- 


INDEX 


455 


sible  for,  at  the  South,  258,  259; 
granted  civil  and  political  rights 
by  the  fourteenth  amendment, 
260-271 ;  attitude  of  the  South 
towards  (1866,  1867),  264-271  ; 
attitude  of  the  North  towards, 
260-271;  as  affected  by  the  fif- 
teenth amendment,  272-277  ;  legal 
rights  under  the  thirteenth,  four- 
teenth and  fifteenth  amendments, 
308-312;  acts  of  Congress,  of  the 
state  legislatures,  and  executive 
proclamations  (1861-1870)  affect- 
ing the  status  of  the  negro,  281- 
287 ;  general  character  of  these 
acts,  287,  290 ;  status  of,  under 
the  constitutions  of  southern 
states,  (1865),  291;  under  south- 
ern constitutions  (1867-1870), 
291-293;  suffrage  rights  under 
southern  constitutions  (1890- 
1902),  293-295;  remarks  on  the 
extension  of  civil  and  political 
rights  to,  330,  331,  342,  343. 

Nevada,  admission  of,  22 1  ;  prohibits 
slavery,  221,  222,  265,  292,  295. 

New  Hampshire,  74,  76, 86,  253,  280. 

New  Jersey,  13,  14;  74,  75,  76,  79; 
ratifying  convention  84 ;  90,  257, 
270,  275. 

New  Jersey  Plan,  The,  22-26,  29,32. 

New  Orleans,  219. 

New  York,  6,  141 ;  ratifying  con- 
vention, 87-89 ;  226,253,265,267, 
279,  292,  293,  300. 

New  York  City,  6. 

"  New  York  Packet  "  The,  36. 

Nicholas,  George,  70,  112. 

Nicholas,  John,  110. 

Nicholson,  Joseph  H.  133. 

North  Carolina,  in  Federal  Conven- 
tion, 27,  2^^  ;  dissensions  in  (1787), 
38;  69,  74,  76,  89,  90;  254,  266, 
270,  283,  285. 

Nullification,  159-169. 

O 

Ohio,  265,  270  ;  rejects  the  fifteenth 

amendment,  275. 
Ordinance  of  1787,  142. 
Oregon  (see  Oregon  question),  225, 

257,  265,  275,  285,  2S6. 
Oregon  question.  The,  176-178. 


Paine,  Thomas,  11. 

Parliament,  and  the  Stamp  Act,  7. 

Paterson,  William,  22,  23. 

Peace  Conference,  The,  205,  206, 
207. 

Pendleton,  George  H.  251. 

Pennsylvania,  8,  14,  16,  76,  80; 
ratifying  convention,  83,  84,  265, 
300. 

Perry,  Benjamin  F.  256. 

Philadelphia,  8,  17;  convention, 
1787,  17,  18. 

Philippines,  The,  constitutional 
questions  involved  in  the  acqui- 
sition of,  321,  323,  326. 

Pickering,  Timothy,  134. 

Pierce,  Franklin,  President,  on  com- 
promise measures  of  1850,  190. 

Pierpoint  government,  The  (Va.), 
219. 

Pinckney,  Charles,  in  Federal  Con- 
vention, 20,  86. 

Pinckney,  Charles  C,  26,  86;  on 
negro  suffrage  (1820),  147,  148. 

Pinckney,  Thomas,  electoral  votes 
for  (1796),  108,  no. 

Pinckney,  William,  126. 

Political  Parties,  beginning  of,  123, 
124,  127;  see  the  federalist  party; 
attitude  of  the  Republicans 
towards  the  purchase  of  Louisi- 
ana, 133-135;  the  Independ- 
ent Democrats  (1854),  192;  the 
republican  party  nominates  Lin- 
coln, 197;  attitude  of  the  repub- 
lican party  toward  slavery,  197, 
206,  251,  252,  263,  264,  265,  283; 
attitude  of  the  democratic  party 
toward  slavery,  264 ;  toward  re- 
construction, 271  ;  attitude  of  the 
republican  party  toward  recon- 
struction, 271,  272-274,  276,  289; 
their  function,  337,  338. 

Polk,  James  K.,  President,  174-178. 

Porto  Rico,  Foraker  Act  concern- 
ing, 324  ;  decision  respecting,  321- 

325- 
Post-office,  Department  of,  10. 
President,  The,  organization  of  the 

office  of,  20,  23,  24,  33 ;  election 

of,  60,  1 1 2-1 17. 
Principles  of  government  in  Amer- 


456 


INDEX 


ica,  The,  analyzed  in  "The  Fed- 
eralist," 35-6S ;  (and  see  under 
"The  Federalist")  interpretation 
of,  by  the  courts  ( i789-iS64),236- 
249;  (1864-1900),  303-326. 

Puhlms,  pseudonym  of  authors  of 
"  The  Federalist,"  89. 

Purvis,  Robert,  172. 


R 


Randolph,  Edmund,  in  Federal 
Convention,  18,  20,  27,  32;  in 
Virginia  Convention,  87,  102. 

Randolph,  John,  1 16 ;  on  the  Louis- 
iana Purchase,  132. 

Randall,  Samuel  J.    261. 

Rats  and  Anti-Rats,  97. 

Read,  George,  70. 

Reconstruction,  209-224;  252-290; 

309-313- 

Representation,  Basis  of  (Consti- 
tution, 1776-1800),  74,  75  ;  (Con- 
stitutions, 1800-1860),  227,  228; 
inclusion  of  the  negro  in  (see 
under  Negro,  also  wnAax  Fourteenth 
and  Fifteenth  Amendments) ;  con- 
stitutions (1860-1900),  293,  294, 
308,312,330,343. 

Republican  party.  The,  197,  206, 
251,  252,  263-265,  271,  272,  274, 
276,  289. 

Revolution,  The  American,  char- 
acter of,  I,  2,  12. 

Rhode  Island,  13,  17,  18;  becomes 
a  state,  69;  ratifying  convention, 
99,  100. 

Richmond,  202. 

Ross,  James,  109. 

Rush,  Richard,  152. 

Rutledge,  John,  86. 


Sauls!)ury,  Senator,  250. 

Scott,  John,  140,  142. 

Secession  (1803),  134;  (1807),  135; 
(i860),  197-210. 

Sedgwick,  Theodore,  98,  105. 

Seward,  William  H.,  speech  on 
"California,  the  Union, and  l''rce- 
dom,"  186,  187;  on  the   Kansas- 


Nebraska  Bill,  191  ;  proposes  a 
national  constitutional  conven- 
tion, 207,  270,  283. 

Seymour,  Horatio,  271. 

Schools,  North  and  South  com- 
pared (1850),  181,  182. 

Sharkey,  William  L.   258,  283. 

Shays's  rebellion,  17. 

Sherman,  John,  270,  274. 

Sherman,  Roger,  11,  in  Federal 
Convention,  25,  26  ;  95,  96,  98. 

Slavery,  discussed  in  Federal  Con- 
vention, 27,  28,  29,  30;  an  issue 
in  the  Missouri  compromise, 
1 39-1 5 1 ;  its  extension  planned 
with  the  acquisition  of  territory 
from  Mexico,  and  annexation  of 
Texas,  175,  178,  179,  183-189; 
extension  of:  in  Kansas  and 
Nebraska  (Kansas,  Nebraska, 
1851-1S54),  190-194,  case  of  Dred 
Scott,  194-197;  extension  of, 
opposed  by  the  republican  party 
(i860),  197-200;  extension  of, 
favored  by  the  Southern  Con- 
federacy, 199-203;  attempts  to 
compromise  by  constitutional 
amendments  (1860-1861),  204- 
208 ;  abolition  of,  in  the  terri- 
tories and  in  the  District  of 
Columbia,  210 ;  compensatory 
emancipation  refused  by  Dela- 
ware, 211  ;  emancipation  by  Lin- 
coln, 211,  212,  214,  218  ;  abolished 
by  the  states  (West  Virginia, 
Missouri,  Arkansas,  Virginia, 
Louisiana,  Maryland,  Nevada, 
Tennessee),  212-222;  abolished 
by  the  thirteenth  amendment, 
250-257. 

Smith,  Adam,  30. 

Smith,  William,  108,  112,  115. 

South  American  Republics,  1 52-1 56. 

South  Carolina  and  the  Western 
lands,  14 ;  on  representation  of 
slaves,  27;  85,86;  tariff  protest, 
nullification,  159-169;  254,  255, 
256,  269,  270,  282,  283. 

South  Carolina  "  Exposition,"  The 
(1828),  159,  160. 

Sovereignty  of  the  general  govern- 
ment; of  the  state,  25,  38,  41,  43, 
44.  48,  49.  Sr.  53.  54.  55-  5^.  62, 
63,  64-67,  71.  87,  100-106,    109; 


INDEX 


457 


formulated  in  the  Virginia  and 
Kentucky  Resolutions,  128-130; 
involved  in  internal  improve- 
ments, 139;  in  the  Missouri  ques- 
tion (1S20),  141,  150,  151;  and 
nullification,  159-168;  of  the 
United  States  in  acquiring  terri- 
tory (Mexico),  175;  of  the  states 
by  the  decision  in  the  Dred  Scott 
case,  ig6;  a  working  element  in 
secession,  198;  of  the  states  an 
element  in  slavery  extension,  199; 
of  the  state  declared  by  tiie 
Constitution  of  the  Confederate 
States,  202 ;  of  the  state  (consti- 
tutions 1800-1860),  234;  last  at- 
tempt to  claim,  by  a  state,  193,  234; 
silence  of  state  constitutions  re- 
specting, 234;  under  the  United 
States  Constitution,  239 ;  na- 
tional, 239,  240,  241,  242,  246, 
248,  249;  national  recognized  by 
the  Nevada  constitution  (1864), 
-95  !  by  the  Mississippi  constitu- 
tion (1890),  295;  of  the  national 
government  declared  by  the 
courts,  304-308  ;  spheres  of  state 
and  national,  306,  307 ;  applica- 
tions of  the  principle  of  national, 
3137326. 

"  Spirit  of  Laws,"  Montesquieu's,  39. 

Squatter  sovereignty,  193. 

Stamp  Act,  The,  6,  7. 

State,  department  of,  10. 

States,  The ;  perils  to,  from  loca- 
tion {1787),  37,  38;  the  basis  of 
confederation,  43;  encroachment 
upon  national  authority,  44;  sov- 
ereignty of,  55;  supremacy  of,  in 
administration  under  a  confed- 
eracy, 62 ;  courts  of,  as  viewed 
by  the  Anti-Federalists,  65-67 ; 
organized  under  written  constitu- 
tions, 69. 

Steele,  Brig.-General  Frederick,  218. 

Stephens,  Alexander  H.  202,  203. 

Stevens,  Thaddeus,  260,  289. 

Stewart,  William  M.  272. 

Story,  Joseph,  Justice,  244,  245. 

Strong,  Caleb,  118. 

Strong,  William,  Justice,  315. 

St.  Louis,  217. 

Suability  of  a  state  (eleventh  amend- 
ment), 100-106. 


Suffrage,  The,  under  state  consti- 
tutions (1776-1800),  75;  free 
negroes  and,  145-149;  extension 
to  the  negro  in  Louisiana  sug- 
gested by  Lincoln,  219,  220; 
suggested  by  President  Johnson 
to  Mississippi,  253;  suggested  in 
Texas  (1866),  257;  North  and 
South  hostile  to  negro,  258,  267  ; 
attitude  of  President  Johnson  to 
negro,  259 ;  negro  in  District  of 
Columbia,  259;  extension  of,  to 
the  negro  (fourteenth  and  fifteenth 
amendments),  260-277,  309-311; 
under  the  Civil  Rights  Act,  258, 
284 ;  negro,  in  the  territories 
(1867),  259,  284,  285;  right  of, 
under  the  fifteenth  amendment, 
286,  287,  309-311  ;  in  the  Philip- 
pines, 323-326 ;  attitude  of  former 
slaveholding  states  to  negro,  292, 
295,  343 ;  woman,  295 ;  for  the 
Indian,  228 ;  disappearance  of 
property  and  religious  qualifica-. 
tions  for,  228 ;  property  qualifi- 
cation for  negro,  in  New  York, 
22S  (note.) 

Supreme  Court,  organization,  19, 
20)  33)  34  >  powers  of,  examined 
in  "  The  Federalist,"  63-66 ;  of 
the  states,  77-79,  232,  233,  300; 
Chief-Justice  Marshall's  services 
in,  171,  236-249,  305,  306,  316, 
31S,  323,  326;  Roger  B.  Taney's 
services  in,  237,  244,  246,  247 ; 
and  the  Dred  Scott  case  (see 
under  Dred  Scott  case)  ;  Salmon 
P.  Chase's  services  in,  237,  306, 
314;  Melville  W.  Fuller's  decision 
in  income  tax  cases,  318. 


Tallmadge,  James,  141,  142. 

Taney,  Roger  B.,  chief-justice, 
opinion  of,  in  the  Dred  Scott 
case,  195,  196. 

Tappan,  Arthur,  172. 

Tariff  bills,  constitutionality  of,  156, 
157;  (182S),  158-160;  and  nullifi- 
cation, 159-169. 

Taylor,  John  W.,  142,  143. 

Ten  amendments,  The  first,  83-100. 

Tennessee,   state   of,   69,  74,    202 ; 


458 


INDEX 


military  governor  in,  214;  abol- 
ishes slavery,  222,  252,  265,  275, 
283,  285,  286,  292,  296. 

Territory,  the  North  West,  the 
South  West,  122;  Missouri,  140- 
150;  Arkansas,  142;  Utah,  New 
Mexico,  183,  relation  of  Wilmot 
Proviso  to  new,  182,  1S3;  pro- 
slavery  view  of  relation  of  the 
Constitution  to  new,  183;  status 
of  new,  discussed  in  debate  on 
the  compromise  of  1S50,  184-189 ; 
Nebraska,  190-194;  status  of,  de- 
fined by  the  decision  in  the  Dred 
Scott  case,  195,  196;  attitude  of 
the  republican  party  to  slavery 
in  a,  197  ;  Arizona,  203 ;  and  the 
Crittenden  resolutions,  205 ; 
slavery  is  abolished,  259,  282 ; 
Montana,  285 ;  power  of  Con- 
gress over,  323-326. 

Texas,  174-178,  183,  1S4,  201,  225, 
257,  266,  270,  274,  275,  284,  285. 

Texas  question.  The,  174-178,  183, 
184. 

Thirteenth  Amendment,  history  of, 
21^0-252  ;  ratification  of,  254-258, 
283 ;  judicial  interpretation  of, 
308. 

Thomas,  Jesse  B.   143,  144. 

Thompson,  Jacol:),  204. 

Tilden,  Samuel  J.   313.  335,  336. 

Topeka  constitution.  The,  193,  194. 

Townshend  Acts,  7. 

Trade,  British-American,  1774,  9. 

Treasury  Notes,  decisions  respect- 
ing. 314-318. 

Treaties,  Jay  {1794),  124,  125; 
Louisiana  (1803),  '39;  United 
States  and  Great  Britain  (1862), 
suppression  of  the  African  slave 
trade,  210. 

Tucker,  Thomas  T.  97. 

Twelfth  amendment,  106-117. 

Tyler,  John,  President,  policy  of, 
^73-175;  presides  over  the  Peace 
Conference,  206. 

U 

Utah  cases.  The,  319,  320. 

Union  of  1643,  The  New  England, 

4,    5 ;     plans     for     colonial,    5 ; 

Albany,  5. 


Van  Buren,  Martin,  President, 
opinions  of  the  Constitution,  172, 

173- 

Vermont,  69,  76,  100,  226,  253. 

Vice-President,  election  of,  11 2-1 17. 

Virginia,  11,  14,  16,  69;  ratifying 
convention,  87,  88;  amendments 
to  the  Constitution,  92,  93  ;  Reso- 
lutions, 128-130,  161 ;  joins  the 
Confederacy,  202  ;  approves  Crit- 
tenden Resolutions,  205 ;  suggests 
the  Peace  Conference,  205;  the 
Pierpoint  Government,  219;  rati- 
fies the  thirteenth  amendment, 
2(9,  252,  rejects  the  fourteenth 
amendment,  271  ;  ratifies  the 
fourteenth  and  fifteenth  amend- 
ments, 275;  constitution  of  1870, 
279,  282,  283,  292  ,  constitution  of 
(1902),  294. 

Virginia  plan.  The,  18-22,  32. 

Virginia  resolutions,  12S-130,  160. 

Voters,  74,  75.     See  also,  Suffrage. 

W 

Washington,  George,  on  Shays's 
rebellion,  17 ;  President  of  Fed- 
eral Convention,  18  ;  on  "  The 
Federalist,"  35 ;  federal  influence 
in  Virginia,  87,  88  ;  chosen  Pres- 
ident, 90 ;  on  Madison's  amend- 
ments, 98;  popularity,  108. 

War,  Department  of,  10. 

Webster,  Daniel,  on  the  Missouri 
compromise,  149;  on  the  tariff 
of  1824,  157;  reply  to  Hayne, 
160-165;  Seventh  of  March 
speech,  185,  i86,  204. 

West  Virginia,  admission  of,  212, 
213,  252,  265,  282,  283,  286,  292. 

Whigs,  The,  elect  Harrison  and 
Tyler,  173  ;  opinion  of  the  Wilmot 
proviso,  183. 

Whittier,  John  G.,  172. 

Wigfall,  Lewis  T.,  on  the  dissolution 
of  the  Union,  208. 

Wilkinson,  on  amendment  of  the 
Constitution,  207. 

Wilmot,  David,  182. 

Wilmot  Proviso,  1S2. 


INDEX 


459 


Williamson,  Hugh,  27. 

Wilson,  Henry,  250. 

Wilson,  James,  22,  24,  31  ;  con- 
fidence in  the  people,  42  ;  70,  83; 
on  suability  of  a  state  (eleventh 
amendment)  103,  104. 

Wisconsin,  228. 

Witherspoon,  John,  70. 


Wyoming,  295. 
Wythe,  Chancellor,  70. 


Yancey,  William  L.  on  secession, 

198. 
Yates,  Richard,  28. 


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